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THE 

DIVINE  RIGHT  OF  KINGS 


BY  THE  SAME  AUTHOR 


From  Gerson  to   Grotius.     Studies  in  Political 
Thought  from  1414  to  1625. 
Oamb.  TTniv.  Press.    3«.  6c?. 

English   History   illustrated   from  Original 
Sources,  1660—1714. 

2nd  edition.    A.  &  C.  Black.    2s.  net. 

Churches  in  the  Modern  State. 

Longmans,  Green  <fe  Co.    is.  6d.  net. 

Christianity  and  History. 

Finch,  1905.    2s.  net. 

The  Gospel  and  Human  Needs. 

Sixth  Impression.    Longmans,  Green  &  Co. 
4s.  6c?.  net.    Popular  Edition.  6d. 

Civilisation  at  the  Cross  Roads. 

Third  Impression.    Longmans,  Green  <fe  Co. 
5s.  net. 

Anti-Christ  and  other  Sermons. 

Longmans,  Green  &  Co.    5s.  net. 

Religion  and  English  Society. 

Fourth  Impression.    Longmans,  Green  &  Co. 
Cloth  2s.    Paper  Is. 


THE 


DIVINE  RIGHT  OF  KINGS 


BY 


JOHN  NEVILLE  FIGGI 

OF  THE   COMMUNITY  OF  THE  RESURRECTION, 
LITT.D.,   HON.    D.D.  GLASGOW, 
HON.    FELLOW   OF   S.   CATHARINe's  COLLEGE,  CAMBRIDGE 


SECOND  EDITION 

WITH  THREE  ADDITIONAL  ESSAYS 


at 


Cambridge : 
the  University  Press 
1914 


CAMBRIDGE  UNIVERSITY  PRESS 
ILontion:  FETTER  LANE,  E.G. 
C.  F.  CLAY,  Manager 


8FtiinbutsI) :  100,  PRINCES  STREET 
Berlin:  A.  ASHER  AND  CO. 
Ueipjig:  F.  A.  BROCKHAUS 
fitia  Icrk  :  G.  P.  PUTNAM'S  SONS 
JSombajj  ant  CBlrutta:  MACMILLAN  AND  CO.,  Ltd. 
CTotonto:  J.  M.  DENT  AND  SONS,  Ltd. 
SToitEO:  THE  MARUZBN-KABUSHIKI-KAISHA 


First  Edition  1896 
Second  Edition  1914 


All  rights  reserved 


TO 

THE  MEMORY 

OF 

EDWARD  HENRY  MOULE 


PKEFACE  TO  THE  SECOND  EDITION 


INCE  this  book  first  appeared,  much  water  has 


flowed  under  the  bridge.  Yet  I  have  left  the 
essay  very  much  as  it  was  in  1896;  not  at  all  because 
I  am  satisfied  with  what  I  wrote  then.  However,  to 
write  a  new  book  on  this  topic  is  not  now  possible; 
and  it  seemed  better  to  make  no  changes,  beyond 
what  were  absolutely  essential. 

Historically  the  chief  defect  of  the  book  is  the 
absence  of  any  account  of  Luther's  influence.  This 
I  tried  to  remedy  in  an  essay  on  '  Luther  and 
Machiavelli '  in  From  Gerson  to  GroUus\  The  early 
matter  is  also  very  incomplete,  and  the  reader  may 
be  referred  to  the  chapters  in  Mr  Carlyle's  History 
of  Political  Theory  in  the  West,  which  deal  with  the 
doctrines  of  obedience  and  non-resistance  in  the 
early  church.  Secondly,  I  wrote  the  pages  on  Pres- 
byterianism  without  understanding  how  deeply  its 

1  I  take  this  opportunity  of  repeating  that  in  the  passages  on 
the  Jesuits,  there  is  in  that  book  a  grave  error:  I  'followed  a 
multitude  to  do  evil ' ;  and  interpreted  a  certain  idiom  in  their 
constitutions,  as  though  it  meant  an  order  to  commit  sin.  It 
meant  nothing  of  the  kind. 


viii  PREFACE  TO  THE  SECOND  EDITION 

exponents  (at  least  from  the  days  of  Cartwright  and 
Andrew  Melville)  were  imbued  with  the  doctrine  of 
the  two  kingdoms.  Light  on  this  may  be  afforded 
by  the  lecture  on  Jus  Divinum  in  16^.6,  which  was 
delivered  last  May  in  the  University  of  Leeds  and 
is  printed  as  an  additional  Essay. 

Mainly,  however,  the  historical  account  stands  as 
before,  and  needed  little  change,  although  it  might 
easily  have  been  expanded.  It  is  different  with  the 
political  structure.  On  the  theory  of  sovereignty 
and  the  relation  of  small  groups  to  the  State,  and 
the  notion  of  a  '  higher  law,'  the  opinions  of  the 
author  have  undergone  much  change ;  nor  has  he 
all  in  vain  heard  the  wisdom  of  masters  like  Acton 
and  Maitland  or  read  the  great  work  of  Gierke.  It 
was  difficult  to  know  what  to  do  with  Chapter  IX., 
but  I  have  changed  little ;  and  present  views  can 
be  seen  in  the  lecture  above  mentioned,  and  also 
in  the  paper,  which  follows  it,  on  Bartolus.  I  have 
developed  them  still  further  in  a  recent  work  on 
Churches  in  the  Modern  State.  The  last  paragraph 
of  the  original  essay  is  also  expunged,  since  on  the 
matter  of  modern  capitalism  both  views  and  sym- 
pathies  are  changed. 

The  paper  on  Bartolus  was  delivered  in  1905  to 
the  Royal  Historical  Society,  and  it  appears  in  the 
Transactions  of  that  body,  from  which  it  is  reprinted 
by  permission.  Also,  I  have  to  thank  the  proprietors 
of  the  Journal  of  Theological  Studies  for  allowing  me 
to  reprint  the  article  on  Erastus  and  Erastianism, 


PREFACE  TO  THE  SECOND  EDITION  IX 


which  appeared  in  1900.  It  shares  with  the  main 
body  of  the  book  the  defect  of  being  written  beneath 
the  shadow  of  the  Austinian  idol. 

All  this  makes  a  lame  defence.  But  a  new 
edition  was  called  for;  and  I  have  done  the  best 
I  could. 

I  must  not  conclude  this  preface,  without  ex- 
pressing ray  warm  thanks  to  my  friend,  Mr  C.  N. 
Sidney- Woolf,  Fellow  of  Trinity  College.  He  has 
not  only  read  through  the  proof  sheets,  but  has 
been  good  enough  to  make  the  Index.  It  is  an 
added  pleasure  to  me  to  feel  that  this  office  has 
been  performed  by  the  man  who  took  to  heart  the 
writer's  expressed  wish,  and  has  given  us  a  study  of 
Bartolus*,  at  once  profound  and  sympathetic  which 
illuminates  for  all  a  very  obscure  region  of  the 
history  of  medieval  thought. 

J.  NEVILLE  FIGGIS. 

HODSK  OF  THE  RESURRECTION , 
MlBFIELD. 

December  3,  1913, 

1  Bartolus  of  Scutoferrato,  by  C.  N.  Sidney-Woolf,  Cambridge 
University  Press,  1914. 


PREFACE 


HAVE  to  thank  the  Adjudicators  of  the  Prince 


-L  Consort  Prize  for  their  kindness  in  permitting 
me  very  much  to  expand,  and  entirely  to  rewrite,  my 
dissertation  of  four  years  ago.  To  the  late  Professor 
Seeley  in  particular  was  due  the  suggestion,  that 
I  should  investigate  French  political  theories  in  the 
sixteenth  century  and  endeavour  to  discover  their 
bearing  on  English  thought.  Even  so,  I  am  sensible 
of  the  extreme  inadequacy  of  this  sketch.  Within 
any  reasonable  time  it  would  be  impossible  to  arrive 
at  a  complete  account  of  a  doctrine,  which  has  relation 
to  every  political  theory  from  medieval  to  modern 
times.  At  some  future  date,  it  may  be  within  my 
power  to  attempt  a  fuller  account  of  the  develop- 
ments which  political  theory  has  undergone  since 
the  later  Middle  Ages.  This  little  essay  is  at  most 
a  preliminary  survey  of  the  ground,  and  can  lay 
claim  to  neither  finality  nor  completeness.  With 
the  view  of  fixing  attention,  so  far  as  possible,  on 
the  main  subject,  I  have  avoided  discussing  in  any 
detail  the  origin  and  development  of  the  rival 
theories,  such  as  the  original  compact  and  popular 


PREFACE 


XI 


sovereignty.  On  the  other  hand  I  have  endeavoured 
in  many  cases  to  give  the  means  of  verification  of 
statements  as  to  the  true  nature  and  purpose  of  the 
doctrines  discussed,  by  putting  into  footnotes  a  few 
of  the  more  striking  utterances  of  all  parties.  Lest 
however  the  notes  should  be  unduly  heavy,  I  have 
collected  into  an  Appendix  a  small  number  of 
passages  illustrating  the  points  which  Chapters 
VIII.  and  IX.  are  intended  to  elucidate. 

To  Mr  R.  A.  Nicholson  of  Trinity  College,  for 
his  kindness  in  going  through  the  whole  book  and 
drawing  up  the  list  of  Errata,  and  to  other  friends, 
for  help  and  suggestions,  while  the  sheets  were 
passing  the  press,  I  tender  my  grateful  thanks. 


J.  N.  F. 


TABLE  OF  CONTENTS 

CHAPTER  PAGE 

I.  Introductory   1 

II.  Early  Ideas  of  Kingship    ....  17 

III.  The  Holy  Roman  Empire  and  the  Papacy  38 

IV.  Wycliffe  and  King  Richard  II.       .      .  66 

V.  Kingship  in  England  from  Henry  IV.  to 

Elizabeth   81 

VI.  Henry  of  Navarre  and  the  Salic  Law   .  107 

VII.  From  James  I.  to  the  Jacobites       .      .  137 

VIII.  Passive  Obedience  and  the  Church  of 

England   177 

IX.     Non-Resistance  and  the  Theory  op  Sove- 
reignty   219 

X.     CoNCLUSioit   256 

Aaron's  Rod  Blossouinq  or  Jvs  Divinvm  in  1646  .  267 

Erastus  and  Erastianism   293 

Bartolus  and  the  Development  of  European 

Political  Ideas     ....  343 

Appendix  A.   Extracts  from  Statutes  relating 

TO  the  Succession       .      .      .  373 

„       B.   Extracts   illustrative   of  points 
discussed  in  Chapters  VIII.  and 

IX   377 

Index   402 


CHAPTER  I 


INTRODUCTORY 

A  MODERN  essayist  has  said  with  truth,  that  The 
"  never  has  there  been  a  doctrine  better  written  1/'^°^^ 

lite  Vivine 

against  than  the  Divine  Right  of  Kings'."    Bnt  R'phi  of 
those,  who  have  exhausted  their  powers  of  satire  commonly 
in  pouring  scorn  upon  the  theory,  have  commonlv 

CLs  dbsiiTcl 

been  at  little  pains  to  understand  it.     That  the 
doctrine  is  absurd,  when  judged  from  the  stand- 
point of  modern  political  thought,  is  a  statement 
that  requires  neither  proof  nor  exposition.  But 
the  modern  standpoint  is  not  the  only  one,  and 
the  absurdity  of  the  doctrine  in  our  eyes  is  the 
least  interesting  or  important  fact  about  it,  except 
as  driving  us  to  seek  further  for  its  real  meaning 
and  value.    Nor  is  "  The  Divine  Right  of  Kings  "  But 
differentiated  by  reason  of  its  absurdity  from  other  theories  of 
political  theories  of  the  seventeenth  century.    The  ^J^j^J""'^ 
rival  doctrine  of  an  original  compact  was  no  whit  absurd. 
less  ridiculous  in  theory,  and  (if  we  consider  its 

1  Gairdner  and  Spedding,  Studies  in  English  History,  245.  Cf. 
also  Mr  Gairdner's  remarks  in  the  preface  to  Letters  and  Papers 
Illustrative  of  the  Reigns  of  Richard  III.  and  Hem-y  VII.  xi — xiii. 

F.  1 


2 


INTRODUCTORY 


influence  upon  Rousseau)  infinitely  more  explosive 
in  practice  than  the  notions  of  Indefeasible  Right  and 
Passive  Obedience.  It  is  noteworthy,  that,  while 
Macaulay  has  nothing  but  contempt  for  the  sup- 
porters of  Divine  Right,  he  does  not  find  it  needful 
to  mention  that  its  opponents  woi;ld  make  no  better 
The  figure  among  political  thinkers  of  to-day.  Instead 
ofThe  pre-      stating  a  fact,  which  is  common  to  all  obsolete 

valence  doctrines,  it  were  surely  better  to  enquire  into  the 
of  the  .  11-  1 

doctrine    notions  Or  those,  to  whom  the  doctrine  seemed 

more  im-    natural,  and  to  set  it  in  relation  to  the  conditions 

portant  ' 

than  the  which  produced  it.  Large  numbers  of  men  may 
^against  its  embrace  a  belief  without  good  reason,  but  assu- 
validity.    redly  they  will  not  do  so  without  adequate  cause. 

And  it  is  commonly  of  far  greater  importance 
towards  the  right  understanding  of  a  doctrine  to 
know  the  causes,  which  lead  to  its  prevalence  or 
decay,  than  it  is  to  be  able  to  criticize  the  reasoning, 
by  which  men  think  to  support  it,  while  it  is  popular 
or  to  demolish  it,  as  it  grows  obsolete*. 
Its  import       Further,  although  the  theory  may  seem  absurd, 
d;^«rfn(    when  framed  into  a  set  of  bald  propositions,  it  is  not 
from  what  ^jgg  therefore  to  infer  that  it  had  no  other  meaning 

It  appears.        .  i 

to  its  supporters,  than  that  which  it  bears  to  us. 
It  may  prove  to  have  been  in  the  main  a  counter- 
theory  to  some  other  notion  of  Divine  Right,  more 
ridiculous  and  less  useful.  Judged  in  relation  to  the 
circumstances  which  produced  it,  and  to  the  rival 

1  Mr  Balfour  takes  these  two  theories  as  offering  the  most 
salient  illustration  of  the  fact  that  the  causes  of  belief  are  widely 
different  from  the  reasons  for  it,  Foundations  of  Belief,  216 — 
17. 


INTRODUCTORY 


3 


doctrines  it  was  formed  to  extirpate,  the  theory  of 
tlie  Divine  Right  of  Kings  may  prove  to  be  neces- 
sary and  even  sensible.  The  import  of  the  battle- 
cries  of  "Passive  Obedience"  and  "lus  Divinum"  to 
those,  who  were  fighting  the  battle,  must  have  been 
very  different  from  what  it  seems  to  those,  who  can 
see  no  meaning  in  the  cries,  because  they  have  for- 
gotten that  there  was  a  battle.  The  method  of 
Whig  historians  is  apparently  to  isolate  the  pheno- 
menon, and  to  observe  it  in  vacuo.  Considered  in 
this  way  any  theory  of  government  must  appear 
ridiculous,  so  soon  as  it  has  ceased  to  influence 
practice.  It  is  not  so  that  the  true  import  and 
value  of  '  forsaken  beliefs '  is  to  be  gauged.  It 
has  been  shewn  that  the  earlier  free-traders  were 
at  fault  in  treating  the  believers  in  the  Mercantile 
theory  as  conscious  knaves  or  incurable  fools.  They 
erred  in  supposing,  that  since  a  theory  has  become 
obsolete,  it  therefore  had  never  anything  to  recom- 
mend it,  save  the  self-interest  of  the  few  and  the 
stupidity  of  the  many'.  May  not  the  same  thing 
be  true  of  some  of  those,  who  have  poured  out  upon 
the  believers  in  the  Divine  Right  of  Kings  ridicule, 
that  certainly  has  the  merit  of  being  obvious  ? 

Nor  again  can  the  doctrine  be  dismissed  as  the  The 
work  of  an  isolated  thinker  with  a  turn  for  paradox,  ^pf'"^ 
It  was  essentially  a  popular  theory,  proclaimed  in  academic 
the  pulpit,  published  in  the  market-place,  witnessed  popular. 
on  the  battle-field.    The  names,  which  have  come 
down  to  us,  as  especially  connected  with  it  stand  out 

1  Cunningham,  History  of  English  Industry  and  Commerce, 
Part  II.  §§  307,  357. 

1—2 


4 


INTRODUCTORY 


rather  by  lapse  of  time,  than  through  any  eminence 
of  their  own.  Filmer  is  not  to  be  regarded  as  a 
prophet  or  thinker,  followed  as  a  master  by  a  crowd 
of  inferior  men.  He  was  only  slightly  more  able 
and  far  more  notorious,  than  a  host  of  other  writers, 
whose  names  and  works  have  faded  from  the  general 
The  recollection.  A  belief  so  widespread  was  surely 
of^acttial  product  far  more  of  practical  necessity  than  of 
7ieeds.  intellectual  activity.  No  enthusiasm  for  a  scheme 
of  ideal  politics,  no  quasi-scientific  delight  in  discus- 
sions upon  the  nature  of  government  could  generate 
so  passionate  a  faith.  The  pressure  of  circumstances 
could  alone  produce  it.  Nor  as  a  matter  of  fact 
is  the  doctrine  much  regarded  by  the  makers  of 
Ideal  Commonwealths  in  the  sixteenth  and  seven- 
teenth centuries.  It  might  seem  that  no  scheme 
of  politics  could  be  more  purely  ideal  than  one  which 
asserts  Divine  authority  for  its  basis.  Yet  there  is 
no  trace  of  propagandism  in  the  works  of  royalist 
writers,  whether  in  France  or  England.  Some  indeed 
are  at  pains  to  assert  that  they  have  no  quarrel  with 
other  forms  of  government,  when  once  established, 
whether  elective  monarchies  or  republics^  There 
is  no  desire  to  establish  universal  Kingship,  akin 
to  the  passionate  enthusiasm  of  French  Revolution- 
aries for  abolishing  it.  For  the  most  part,  the 
horizon  of  the  politico-theological  writers  of  the 
sixteenth  and  seventeenth  centuries  is  bounded  by 
a  particular  country  in  a  definite  stage  of  deve- 
lopment. A  Frenchman  will  indeed  find  in  the 
Davidic  kingdom  the  model  of  a  state  governed  by 
'  E.g.  Hickes  in  Jovian, 


INTRODUCTORY 


5 


the  Salic  law.     An  Englishman  will  see  in  it  the 
Divine  justification  for  the  English  law  of  succes- 
sion.   But,  except  for  the  purpose  of  finding  God's 
authority  for  a  given  polity,  neither  really  looks 
beyond  his  own  country.    The  theory  is  the  out- 
come of  facts  far  more  than  it  is  of  thinking.  From 
the  consideration  of  the  popular  acceptance  and 
practical  object  of  the  doctrine,  some  obvious  con- 
clusions may  be  drawn.    First,  it  seems  clear  that  The 
so  general  and  enthusiastic  a  faith  must  have  been  ^^,^^g^  i^^^g 
the  expression  of  deep-seated  instincts ;  secondly,  ^^^^^:^^ff 
that  a  doctrine  so  fully  elaborated  and  yet  so  stincts 
eminently  the  product  of  a  definite  epoch  ^^^^  fulfilled  a 
have  been  the  result  of  a  long  chain  of  historical /wnci/ow. 
causes,  and  that  it  must  have  been  formed  to  meet 
real  needs.    If  so,  it  had  a  definite  function  to  fulfil 
in  the  development  of  society.    It  is  the  purpose 
of  this  essay  to  enquire  how  far  this  was  the  case. 

The  theory  of  the  Divine  Right  of  Kings  in  its  Statement 
completest  form  involves  the  following  propositions: —  ({/j^. 

(1)  Monarchy  is  a  divinely  ordained  institution. 

(2)  Hereditary  right  is  indefeasible.  The  suc- 
cession to  monarchy  is  regulated  by  the  law  of 
primogeniture.  The  right  acquired  by  birth  can- 
not be  forfeited  through  any  acts  of  usurpation,  of 
however  long  continuance,  by  any  incapacity  in  the 
heir,  or  by  any  act  of  deposition.  So  long  as  the 
heir  lives,  he  is  king  by  hereditary  right,  even 
though  the  usurping  dynasty  has  I'eigned  for  a 
thousand  years. 

(3)  Kings  are  accountable  to  God  alone.  Mon- 
archy is  pure,  the  sovereignty  being  entirely  vested 


6 


INTRODUCTORY 


in  the  king,  whose  power  is  incapable  of  legal 
limitation.  All  law  is  a  mere  concession  of  his  will, 
and  all  constitutional  forms  and  assemblies  exist 
entirely  at  his  pleasure.  He  cannot  limit  or  divide 
or  alienate  the  sovereignty,  so  as  in  any  way  to 
prejudice  the  right  of  his  successor  to  its  complete 
exercise.  A  mixed  or  limited  monarchy  is  a  contra- 
diction in  terms. 

(4)  Non-resistance  and  passive  obedience  are 
enjoined  by  God.  Under  any  circumstances  resist- 
ance to  a  king  is  a  sin,  and  ensures  damnation. 
Whenever  the  king  issues  a  command  directly 
contrary  to  God's  law,  God  is  to  be  obeyed  rather 
than  man,  but  the  example  of  the  primitive  Chris- 
tians is  to  be  followed  and  all  penalties  attached  to 
the  breach  of  the  law  are  to  be  patiently  endured. 

Illuatra-         The  following  passages  set  the  doctrine  forth  in 

^qZta.      the  language  of  the  time  :— 

Hons.  "We  will  still  believe  and  maintain  that  our 

Kings  derive  not  their  title  from  the  people  but 
from  God;  that  to  Him  only  they  are  accountable; 
that  it  belongs  not  to  subjects,  either  to  create  or 
censure,  but  to  honour  and  obey  their  sovereign,  who 
comes  to  be  so  by  a  fundamental  hereditary  right  of 
succession,  which  no  religion,  no  law,  no  fault  or 
forfeiture  can  alter  or  diminish'."  "Obedience  we 
must  pay,  either  Active  or  Passive ;  the  Active  in 
the  case  of  all  lawful  commands ;  that  is  whenever 
the  Magistrate  commands  something  which  is  not 

1  From  an  address  of  the  University  of  Cambridge  to  King 
Charles  II.  in  1681,  printed  in  the  History  of  Passive  Obedience, 
p.  108. 


INTRODUCTORY 


7 


contrary  to  some  command  of  God,  we  are  then 
bound  to  act  according  to  that  command  of  the 
Magistrate,  to  do  the  thing  he  requires.  But  when 
he  enjoins  anything  contrary  to  what  God  hath 
commanded,  we  are  not  then  to  pay  him  this  Active 
Obedience ;  we  may,  nay  we  must  refuse  thus  to 
act  (yet  here  we  must  be  very  well  assured  that 
the  thing  is  so  contrary,  and  not  pretend  conscience 
for  a  cloak  of  stubbornness),  we  are  in  that  case  to 
obey  Ood  rather  than  man.  But  even  this  is  a 
season  for  the  passive  obedience ;  we  must  patiently 
suffer  what  he  inflicts  on  us  for  such  refusal,  and 
not,  to  secure  ourselves,  rise  up  against  him'." 

"  If  Adam  himself  were  still  living  and  now 
ready  to  die  it  is  certain  there  is  one  man,  and  but 
one  in  the  world  who  is  next  heir,  although  the  know- 
ledge who  should  be  that  one  man  be  quite  lostl" 

The  theory  is  commonly  supported  by  a  number  Common 
of  Biblical  illustrations  and  texts,  of  which  some  of 

'  in  favour 

the  most  important  may  be  mentioned  : — Samuel's  of  the 
description  of  a  king,  on  the  Jewish  nation  de- 
manding  one';  David's  refusal  to  touch  "the  Lord's 
anointed " ;  the  text  "  By  me  kings  reign  and 
princes  decree  justice^";  the  passage  describing 
the  vision  of  Nebuchadnezzar,  asserting  that  "the 

1  Whole  Duty  of  Man,  Sunday  xiv.  §  5.  The  passage  is  quoted 
by  Hobbes  as  giving  the  best  expression  of  "the  doctrine  of  the 
King's  party."    {Behemoth,  Part  i.  p.  80.) 

2  Filmer's  Fatriarcha.    Chap.  i.  §  9. 

'  1  Sam.  vii.  10 — 18.  There  is  much  controversy  as  to 
whether  Samuel  intended  to  describe  a  good  king  exercising  his 
sovereign  rights,  or  a  tyrant. 

*  Prov.  viii.  15. 


8 


INTRODUCTORY 


Most  High  ruleth  in  the  kingdom  of  men,  and 
giveth  it  to  whomsoever  he  will,  and  setteth  up 
over  it  the  basest  of  men'";  the  command  to  "render 
unto  Caesar  the  things  that  are  Caesar's"";  Christ's 
words  to  Pilate  "thou  eouldest  have  no  power  at  all 
against  me  except  it  were  given  thee  from  above^"; 
the  behaviour  of  the  primitive   Christians ;  and 
above  all  the  direct  enjoining  by  both  S.  Peter 
and  S.  Paul  of  obedience  to  constituted  authority, 
"  The  powers  that  be  are  ordained  of  God.  Whoso- 
ever therefore  resisteth  the  power,  resisteth  the 
ordinance  of  God.     And  they  that  resist  shall  re- 
ceive to  themselves  damnation."    "  Ye  must  needs 
be  subject,  not  only  for  wrath,  but  for  conscience' 
sake^"    "Submit  yourselves  to  every  ordinance  of 
man  for  the  Lord's  sake — whether  it  be  to  the  king 
as  supreme,  &c.^" 
The  Pa-         The  Patriarchal  theory,  the  most  unqualified 
^formof'the  ^o^"™       which  Filmer  and  others  profess  to  find 
theory  not      Genesis,  forms  the  basis  of  the  most  symmetrical 
to  it.        form  of  the  doctrine  of  Divine  Right,  but  it  is  far 
from  universal  and  there  is  no  reason  for  regarding 
it  as  of  the  essence  of  the  theory. 
No  im-  Nor,  again,  does  the  sacramental  character  of 

portance    ^jj^g^iQ^  play  much  part  in  the  exposition  of  the 

1  Daniel  iv.         "  g,  Lu^g  xx.  25.         a  S.  John  xix.  11. 
Rom.  xiii.  1 — 7.  It  was  held  of  great  importance  to  maintain 
that  Kpicns  meant  damnation  in  the  strict  sense.     There  is  a 
lengthy  dissertation  of  Hammond  to  prove  this  single  point. 

^  1  Pet.  ii.  13 — 17.  A  favourite  argument  to  prove  that  kings 
are  accountable  to  God  alone  is  the  text  "Against  thee  only  have  I 
sinned"  (Ps.  li.  4).  It  is  quoted  by  a  French  writer  as  having  the 
authority  of  Otto  of  Freising,  and  is  used  by  Leslie  among  others. 


INTRODUCTORY 


9 


divino  authority  of  kings.  Richard  II.  undoubtedly  attached 
believed  that  unction  conferred  an  indelible  mark,  '""^ 
and  the  motion  of  the  sacredness  of  royal  power, 
as  compared  with  all  other  constituted  authority, 
was  certainly  strengthened  by  this  ancient  cere- 
mony'. But  it  plays,  in  the  controversies  of  the 
sixteenth  and  seventeenth  centuries,  a  quite  differ- 
ent part.  In  France  the  supporters  of  the  League 
are  found  arguing,  that  unction  is  necessary  to 
make  a  king,  and  that  Henry  IV.,  who  as  a 
heretic  cannot  be  anointed  by  the  Archbishop  of 
Rheims,  can  therefore  never  be  truly  king.  In 
England,  the  writers  on  the  popular  side  are  con- 
tinually pointing  to  the  coronation  oath  as  evidence 
of  the  theory  of  compact,  and  as  limiting  the  royal 
authority.  Hence  both  in  France  and  England,  the 
counter-assertion  is  common  that  unction  is  of  no 
importance,  and  confers  no  special  grace ;  that  the 
king  is  king  before  his  coronation  as  fully  as  he  is 
after;  and  that  resistance  to  an  'uncrowned'  king  is 
verily  damnable.  The  phrase,  "the  Lord's  Anointed," 
is  merely  common  form  for  the  sacred  person  of  the 

1  Shakespeare  expresses  the  sentiment  rather  of  Richard  II. 
himself  than  of  the  believers  in  the  Divine  Right  of  Kings,  in  the 
famous  lines : — 

"  Not  all  the  water  in  the  rude  rough  sea 
Can  wash  the  balm  from  an  anointed  king." 

There  can  be  no  doubt  that  the  notion  of  the  sacred  character 
conferred  by  unction  was  held  by  Richard,  and  that  it  long  remained 
an  element  in  popular  feeling.  But  the  exigencies  of  their  position 
drove  the  supporters  of  the  theory  of  Indefeasible  Right  to  mini- 
mize the  effect  of  unction.  Any  stress  laid  upon  it  tended  to 
make  the  king  a  mere  ofiBcial,  and  to  support  the  doctrine  of 
the  originally  elective  character  of  kingship. 


10 


INTRODUCTORY 


King  and  is  used  by  writers  who  are  far  from  attri- 
buting any  sacramental  character  to  the  ceremony. 
Undoubtedly  the  ordinary  view  is  that  of  a  royalist 
divine,  who  declares  in  set  terms  that  "Royal 
Unction  confers  no  grace,  but  declares  a  just  title 
only."  Indeed  no  other  view  was  really  compatible 
with  the  notion  of  indefeasible  hereditary  right'. 

'  The  Royal  Charter  granted  unto  Kings,  Chap.  iii.  What  is 
meant  by  the  anointing  of  Kings.  "  Unxit  in  regem  includes 
nothing  but  a  due  title,  excludes  nothing  but  usurpations  ;  gives 
him  the  administration  to  govern,  not  the  gift  to  govern  well ;  the 
right  of  ruling,  not  of  ruling  right."  "Anointing  is  a  sacred 
signature  betokening  sovereignty,  obedience  to  the  throne,  allegiance 
to  the  Crown."  Usher  after  quoting  David's  sentence  on  the  Ama- 
lekite  for  slaying  the  Lord's  anointed  goes  on :  "  And  this  indeed 
must  be  the  main  foundation  not  only  of  the  observance  but  also 
of  all  the  other  branches  of  that  allegiance,  which  we  do  owe  unto 
our  Prince  ;  that  with  the  right  which  he  hath  obtained  by  Election 
or  Succession  here  below  we  he  careful  to  conjoin  that  unction 
which  he  hath  received  from  above."  (Power  of  the  Prince,  p.  125.) 
Clearly  unction  is  regarded  as  equivalent  to  God's  institution 
of  kings,  not  as  a  grace  conferred  by  the  sacrament  of  anointing. 
Cf.  Coke  on  Calvin's  Case.  "  Coronation  is  but  a  royal  ornament 
and  solemnization  of  the  royal  descent,  but  no  part  of  the  title." 
He  goes  on  to  quote  the  case  of  two  seminary  priests,  who  claimed 
that  before  his  coronation  it  was  not  high  treason  to  seize  and 
imprison  King  James.  This  doctrine  was  of  course  condemned  by 
the  judges,  who  declared  him  to  be  as  full  king  before  coro- 
nation as  after  (7  Reports,  10  b).  It  is  significant,  that  neither 
The  Maid's  Tragedy  nor  The  Royal  King  and  Loyal  Subject, 
although  each  asserts  most  emphatically  the  sacred  character 
of  Kingship,  contains  the  slightest  hint  that  this  character  is 
acquired  through  unction.  In  France  again,  Servin  writing  on 
behalf  of  Henry  IV.  distinctly  denies  that  unction  has  any 
significance,  or  is  more  than  a  pious  ceremony.  Blackwood 
indeed  appears  to  take  a  different  view :  "An  uon  quemadmodum 
sacerdotes  sic  et  reges  cum  inaugurantur  oleo  id  est  divina  quadam 
virtute  inunguntur?    Nam  oleum,  illud  quo  reges  olim  sacerdotes 


INTRODUCTORY 


11 


Now  a  theory,  such  as  that  described,  has  plainly  The 
as  much  relation  to  theology  as  to  politics,  and  cannot  ^IgiJ^gg  to 
be  judged  from  the  standpoint  of  an  age,  when  the  <in^<i<je, 
two  are  sharply  divided.  Although  something  is  heard  politics 
at  times  of  the  importance  of  religious  considerations  f,"** , 

.  .  .  .  theology 

in  regulating  international  politics  or  state-inter-  were 
ference,  yet  no  one  now  claims  that  politics  is  a  gQ^i^i^tgd 
branch  of  theology.    Men  may  appeal  with  more  or 
less  of  sincerity  to  Christian  sentiment  as  a  factor  in 
political  controversy,  but  they  have  ceased  to  regard 
political  theory  as  a  part  of  Christian  doctrine.  The 
theory  of  the  Divine  Right  of  Kings  belongs  to  an  age 
in  which  not  only  religion  but  theology  and  politics 
were  inextricably  mingled,  when  even  for  utilitarian 
sentiments  a  religious  basis  must  be  found  if  they 
were  to  obtain  acceptance.     All  men  demanded  The  same 
some  form  of  Divine  authority  for  any  theory  oi^^^^°^^ 
government.    There  is  hardly  a  hint  that  those  ployed  by 
who  disbelieved  in  the  Divine  Right  of  Kings  had  o/^/j"^"*'' 
any  quarrel  with  the  methods  of  their  opponents.  ^^'^""J- 
Until  towards  the  close  of  the  seventeenth  century, 
the  atmosphere  of  the  supporters  of  popular  rights 
is  as  theological  as  that  of  the  vipholders  of  the 
Divine  Right  of  Kings. 

John  HalP  indeed  brushes  aside  the  Biblical 
illustrations  and  authorities  of  the  royalists;  but  most 
are  content  to  argue  on  just  the  same  lines  as  their 

et  prophetae  perfundebantnr,  divinitatis  symbolum  erat  ac  veluti 
sacramentum"  (Apologia  pro  Regibus,  p.  15,  cf.  also  De  Vinculo 
Religionis  et  Imperii,  pp.  232,  314).  But  this  view  is  far  less 
common  than  that  given  in  the  text. 

1  The  Grounds  and  Reasons  of  Monarchy  prefixed  to  Harring- 
ton's Works,  p.  8. 


12 


INTRODUCTORY 


opponents.  They  point  out  that  Scripture  has  been 
misunderstood,  that  texts  have  been  ignored  which 
inculcate  the  right  and  duty  of  resistance,  that  the 
early  Christians  exhibited  the  virtue  of  Passive  obe- 
dience merely  because  they  could  not  help  themselves. 
Even  the  original  compact  finds  its  biblical  model 
in  the  '  law  of  the  kingdom '  laid  down  by  Samuel. 
Towards  the  end  of  the  seventeenth  century,  with 
Locke  and  Sidney  and  even  the  more  able  of 
the  royalists,  politics  began  to  pass  into  a  more 
modern  stage.  But  most  writers,  of  whom  Johnson 
the  author  of  Julian  the  Apostate  is  a  fair  specimen, 
have  hardly  a  notion,  that  political  theory  can  be 
framed  except  on  a  theological  basis,  or  proved  save 
by  the  authority  of  the  Bible.  Writers  on  behalf 
either  of  unlimited  obedience  or  popular  rights, 
though  they  are  undoubtedly  impelled  by  a  pressing 
sense  of  the  utility  of  resistance  or  vice  versa,  yet  seek 
by  appealing  to  Scripture  to  establish  their  theory 
upon  an  immutable  basis,  and  to  base  it  upon  trans- 
cendental grounds,  of  which  no  fresh  view  of  what  was 
merely  expedient  should  ever  destroy  the  force.  To 
judge  aright  the  political  theories  of  the  sixteenth 
and  seventeenth  centuries,  we  must  not  consider 
them  from  the  standpoint  of  an  age  in  which  all 
political  theory  is  confessedly  utilitarian";  their  true 
relations  are  to  a  time  when  theology  and  politics 
were  closely  united  both  in  theory  and  practice. 
It  is  useless  to  demonstrate,  what  nobody  doubts, 
that  the  theory  of  the  Divine  Right  of  Kings  has 

1  Professor  Sidgwick  (Elements  of  Politics  34)  bears  witness  to 
the  exclusively  utilitarian  character  of  modern  politics. 


INTRODUCTORY 


13 


no  affinity  with  the  creed  of  any  modern  political 
party.  Rather  we  must  seek  to  find  what  political 
theories  of  ecclesiastical  power  met  their  coun- 
tervailing influence  in  this  theological  theory  of 
politics. 

Again,  the  theory  assumes  the  fact  of  "  sove-  The 

reignty."   When  it  is  borne  in  mind,  that  the  idea  of  j-^^^'^^g^ 

sovereignty  in  the  Austinian  sense  was  unknown  in  notion 

■     1         •      -1        -111  •       -11  of  save- 

any  smgle  nation  in  the  middle  ages,  it  will  at  once  reignty. 

become  a  matter  for  enquiry  how  far  the  uncom- 
promising absolutism  of  the  royalist  writers  may 
have  been  merely  the  expression  of  a  thought,  which 
came  to  them  with  all  the  force  of  a  discovery. 
While  the  fact  that  the  notion  appears  in  the  claims 
to  universal  supremacy  of  both  Popes  and  Em- 
perors, may  point  to  the  possibility  of  similar  causes 
operating  in  the  struggles  on  the  part  of  the  national 
states  for  independence  of  Papal  control,  it  was  not, 
perhaps,  easy  for  a  writer  like  Austin  to  see,  how 
a  theory  of  the  state  can  ever  be  formed  without 
the  recognition,  that  there  must  be  in  it  some 
ultimate  authority,  which  because  it  can  make  laws 
is  above  law.  Yet  it  is  certain  that  this  notion  is 
modern,  and  that  the  idea  of  the  complete  supremacy 
of  one  body  or  person  in  the  state  did  not  enter  the 
heads  of  those  who  wrote  of  the  English  polity  in 
the  middle  ages.  Bracton  knows  of  no  sovereign  in 
the  Austinian  sense,  and  distinctly  denies  to  the 
royal  authority  the  attribute  of  being  '  incapable  of 
legal  limitation^'    How  indeed  could  it  have  been 

1  Cf.  Pollock  and  Maitland,  History  of  English  Law,  i.  160. 
"  That  the  king  is  below  the  law  is  a  doctrine  which  even  a  royal 


14 


INTRODUCTORY 


otherwise  under  the  conditions  of  feudalism,  however 
modified,  and  in  the  face  of  the  admitted  claims 
of  the  Papacy  and  the  canon  law'?    In  addition, 
then,  to  setting  the  theory  of  the  Divine  Right  of 
Kings  in  relation  to  contemporary  conflicts  of  politics 
and  theology,  it  will  be  needful  to  enquire  how  far 
the  doctrine  is  the  expression  of  a  dawning  idea  of 
sovereignty,  whether  or  no  this  idea  was  realised  by 
the  opponents  of  Divine  Right,  and  what  are  the  true 
relations  of  the  latter  doctrine  to  the  more  systematic 
theory  of  sovereignty,  expounded  by  Hobbes. 
Origin  of       The  fact,  that  Imperialist  writers  in  the  middle 
to%T'^°"'^  ages,  endeavouring  to  refute  the  claims  of  the  Pa- 
sought      pacy,  develope  for  themselves  the  essential  notion  of 
conflicu     sovereignty,  points,  as  was  said,  to  the  conflict  with 
°f*^^       Rome  as  the  true  source  of  the  theory  of  Divine 

Papacy  _ 

and  Right.  Again,  the  necessarily  theological  character 
Empue.  politics,  so  long  as  the  Pope's  claims  to  supreme 
political  authority  were  a  main  factor  in  the  situa- 
tion, makes  it  yet  more  plain,  that  the  history  of  the 
theory  must  be  largely  concerned  with  the  political 
side  of  the  Reformation  struggle.  But  in  order  to 
learn  how  the  weapons  were  forged,  which  were  to 
be  used  in  the  seventeenth  century,  it  will  be  needful 
to  study  the  earlier  conflicts  of  Pope  and  Emperor. 

justice  may  fearlessly  proclaim.  The  theory  that  in  every  state 
there  must  be  some  man  or  definite  body  of  men  above  the  law, 
some  '  sovereign '  without  duties  and  without  rights  would  have 
been  rejected."  See  also  p.  208,  and  Bk.  n.  Ch.  ii.  §  13,  The  King 
and  the  Crown. 

I  Cf.  Maine,  Early  History  of  Institutions,  Lectures  xii.  and 
XIII.  in  which  is  shewn  the  practical  inapplicability  of  Austin's 
theory  to  primitive  societies  and  half  developed  states. 


INTRODUCTORY 


15 


In  those  the  Papalist  writers  first  will  be  found 
developing  a  theory  of  sovereignty  for  their  Lord  the 
Pope,  while  this  is  met  by  the  counter-contention 
of  the  Imperialists  that  not  the  Pope  but  the 
Emperor  is  truly  sovereign,  and  that  he  is  so  by 
God's  direct  appointment.  Here  clearly  arc  the 
main  elements  of  the  later  doctrine. 

That  to  the  Reformation  was  in  some  sort  due  if  the 
the  prevalence  of  the  notion  of  the  Divine  Right  of 
Kings  is  generally  admitted  \    If  then  it  should '^^^ 
prove  that  the  doctrine  was  an  essential  element  of  Reforma- 
success  in  the  struggle  against  the  political  claims  ^J[°^'gll^ 
of  the  Papacy,  it  will  be  vain  to  condemn  its  service. 
supporters  for  trying  to  set  back  the  clock  of  time. 
If  the  theory  was  needful,  it  did  good  work,  and  the 
fact  that  the  work  is  done  is  no  reason  for  pouring 
ridicule  on  those  who  took  part  in  it.    The  value  of 
a  doctrine  is  to  be  gauged,  not  from  its  having  given 
place  to  a  better,  but  from  its  having  superseded 
one  which  was  either  pernicious  or  had  become 
obsolete. 

The  interest  of  the  subject  is  great.    It  marks  History  of 
the  transition  from   mediaeval  to   modern  modes  lf\!^g°ggt 
of  thought.    In  studying  it  we  see  the  links  of  as  mark- 
connection  between  thinkers  like  Dante  and  Ockham  l^ange 
on  the  one  hand,  and  Locke  and  Rousseau  on  the 

....        ,  .         „  1     •  ,  medimval 

other,  while,  despite  the  notion  oi  natural  rights,  to  modem 
Locke  and  Sidney  with  their  strong  vein  of  utili- 

o  as  proving 

tarian  sentiment   are  plainly  the  forerunners  of  the  de- 
Bentham  and  Mill.    But  not  only  does  the  history  of^t'fuory 

1  See  especially  Mr  Gairdner's  valuable  essay  on  the  subject. 
Gairdner  and  Spedding,  Studies  in  English  History,  245  sqq. 


16 


INTRODUCTORY 


upon        of  the  doctrine  serve  to  bridge  the  gulf  between 

practice.  . 

mediaeval  and  modern  thought.  It  also  illustrates 
the  inevitable  dependence  of  theory  upon  circum- 
stances. That  facts  are  the  parents  of  theories  far 
more  than  theories  of  facts,  that  political  thought  is 
inevitably  relative  to  political  development,  men  are 
all  too  prone  to  forget.  But  no  one  who  studies  the 
origin  and  history  of  the  theory  of  the  Divine  Right 
of  Kings  is  likely  to  do  so.  On  the  other  hand  it  is 
unquestionably  true,  that  a  doctrine  produced  by 
the  pressure  of  circumstances  may  have  a  great 
practical  work  to  perform.  It  gives  expression  to  real 
needs,  and  strengthens  men  in  their  determination 
to  make  a  stand,  for  what  they  instinctively  feel  to 
be  of  vital  importance.  No  belief  could  be  more  the 
child  of  circumstance  than  that  in  the  Divine  Right 
of  Kings ;  while  it  played  no  despicable  part  in 
giving  the  nation  some  sort  of  intellectual  and 
doctrinal  basis  for  its  claim  to  independence  of 
ecclesiastical  control.  These  points  it  will  be  the 
aim  of  the  following  essay  to  elucidate. 


CHAPTER  II 


EARLY  IDEAS  OF  KINGSHIP 

The  developed  doctrine  of  kingship  of  the  seven-  Early 

teenth  century  has  been  described  by  Sir  Frederick  as"(o™^"* 

Pollock  as  "  not  rational,  not  ingenious,  not  even  ^c^nctity 
,,  .      .  ,  r  ,    .         .  n    1    •    "/  Kings. 

ancients      Yet  the  instinct,  which  it  satisned,  is 

as  old  as  history.  In  some  form  the  sanctity 
of  kingship  has  been  held  from  very  early  times. 
Although  the  theory  of  the  seventeenth  century  was 
mainly  the  expression  of  immediate  needs,  it  is  not 
possible  to  deny  some  part  in  it  to  a  sentiment  of 
loyalty,  which  is  as  old  as  human  society.  Most 
primitive  tribes  seem  to  have  thrown  some  sort 
of  halo  round  the  person  of  the  chief.  Either 
the  mysterious  supernatural  power  of  the  medicine- 
man was  the  basis  of  his  dominion  among  races, 
who  perhaps  had  not  risen  to  any  definite  notions 
of  a  divinity ;  or  else  he  was  believed  to  have  been  The  King 
an  actual  incarnation  of  the  deity.  Dr  Frazer  J",^"'^ 
in  The  Golden  Bough  has  brought  together  a  large 
number  of  instances  of  the  prevalence  of  this  notion. 
He  shews  also  the  intimate  connection  between 
kingship   and   priesthood.     The   maxim.  Rex  est 

'  History  of  the  Science  of  Politics,  65. 


18 


EARLY  IDEAS  OF  KINGSHIP 


mixta  persona  cum  sacei'dote  is  the  expression  of 
what  was  once  an  actual  fact ;  and  to  this  is  proba- 
bly due  much  common  sentiment  as  to  the  sanctity 
of  royalty. 

The  King  With  the  lapse  of  time,  the  belief  that  a  king  was 
descent.  ^  gt)d  gave  way  to  the  notion,  that  he  was  of  divine 
descent.  As  the  Incas  claimed  to  be  the  children 
of  the  Sun,  so  the  notion  of  divine  parentage  is  the 
first  germ  of  the  theory,  which  meets  us  upon  the 
threshold  of  English  History.  When  the  institution 
of  royalty  was  developed  by  the  circumstances  of  the 
Conquest  among  the  communities  that  migrated  to 
Britain,  all  the  petty  monarchs  of  the  early  English 
tribes  found  it  well  to  strengthen  their  title  by  a 
direct  claim  to  descent  from  Wodin,  thus  investing 
the  new  authority  with  something  of  a  supernatural 
sanction. 

Influence        With  the  introduction  of  Christianity  a  fresh 

of  Chris-  ,  ,     .  .  ,  . 

tianity.  and  more  enduring  source  oi  strength  was  given  to 
the  notion  that  obedience  was  a  divine  command. 
Suffering  for  conscience'  sake  became  a  duty.  The 
divine  institution  of  the  Davidic  kingdom,  the 
mysterious  character  of  Melchisedec  the  priest  king, 
and  the  very  definite  commands  of  S.  Peter  and 
S.  Paul  could  not  be,  and,  as  a  matter  of  fact,  were 
not  overlooked.  The  sufferings  of  the  early  Chris- 
tians were  an  example,  which  later  apologists  of 
resistance  might  explain  away,  but  they  could  not 
well  be  forgotten.  Without  crystallizing  into  a 
definite  theory  of  the  nature  of  government  or  of 
the  limits  of  obedience  in  extreme  cases,  there 
subsisted  throughout  the  middle  ages  a  feeling  that 


EARLY  IDEAS  OF  KINGSHIP 


19 


kinffs  and  all  in  authority  were  the  vicara  of  God,  Obedience 

.  ,    ■  •  1  Kings 

and  that  resistance  to  their  commands  was,  in  general,  as  vicars 

a  damnable  sin.     An  aspiring  Pope  like  Hildebrand  ^{^^"^^^ 

might  indeed  declare  later,  that  all  secular  govern-  as  a  reli- 

ments  were  of  diabolic  origin.     But  there  remained  f)°j!^uyhout 

y  in  the  common  consciousness  some  sense  that  the  middle 

king's  power  was  of  God,  that  obedience  to  him 

was  a  religious  duty,  taught  and  practised  by  Christ 

himself  and  the  Apostles.     It  was  not  a  theory,  but 

it  afforded  material  out  of  which  a  theory  might  be 

formed,  if  at  any  time  circumstances  should  drive 

men  to  seek  for  one.     As  an  instance  may  be  taken 

the  report  of  the  legates  George  and  Theophylact  of 

their  proceedings  in  England  A.D.  787'.   They  appeal, 

as  a  non-juror  might  have  done,  to  the  fourth  of 

Daniel,  to  the  thirteenth  of  Romans,  to  the  words  of 

S.  Peter.  They  quote  the  prohibition  against  cursing 

the  king  even  in  thought,  and  speak  of  all  who  are 

accessory  to  regicide,  as  on  a  level  with  Judas.  It 

is  evident  that  the  legates  are  using  the  common 

form  of  enjoining  obedience  to  civil  government. 

Clearly  they  put  forward  no  abstract  theory  of 

indefeasible  right  or  of  absolute  sovereignty  or 

even   of  invariable   non-resistance.    It    must  be 

remembered,  that  later  royalist  writers  were  only 

following  in  the  wake  of  centuries,  when  they  quoted 

1  Stubbs  aud  Haddan,  Councils  iii.  453,  Cap.  xii.,  De  ordina- 
tione  et  honore  regum.  "  Omnes  generaliter  admonuimus,  ut  consona 
voce  et  corde  Dominum  rogent,  ut  Qui  eligit  eum  in  regnum,  Ipse 
ei  tribuat  regimen  disciplinae  sanctae  Suae  ad  regendain  plebem 

Suam  In   necem  regis  nemo   communicare    audeat,  quia 

christus  Domini  est.  Omnis  quisquis  tali  sacrilegio  consensat... 
aeterno  anathematis  vinculo  interibit,  et  Judae  traditori  sociatus." 

2—2 


20 


EARLY  IDEAS  OF  KINGSHIP 


Scripture  to  prove  the  duty  of  obedience,  or  called 
the  king  the  vicar  of  God,  and  employed  far-fetched 
Biblical  analogies  and  forced  interpretations  to 
support  their  contention*.  All  this  was  old  enoughs 
What  was  new,  was  the  attempt  to  draw  from  it  a  con- 
sistent logical  theory  of  the  nature  of  government 
and  of  the  mutual  relations  of  sovereign  and  siibject. 

With  regard  to  early  English  kingship,  that  it  was 
not  strictly  hereditary  by  the  law  of  primogeniture, 
is  well  known.  But  it  must  be  borne  in  mind,  that, 
although  the  right  of  election'  and  deposition  rested 
with  the  Witan,  they  could  only  exercise  their  right 
within  the  limits  of  the  royal  family.    The  case  of 

1  The  non-juror  Leslie  is  very  angry  with  Burnet  for  declaring 
that  the  theory  of  Divine  Eight  was  the  product  of  the  Reforma- 
tion. "  None  knows  better  than  his  Lordship,  that  the  notion  of 
Kings  having  their  power  from  God,  was  long  in  the  world  before 
either  the  Reformation  or  Popery.  All  the  ancient  Fathers  are 
full  of  it.  And  they  took  it  from  the  Holy  Scripture,  where  it  is 
abundantly  testified"  (The  Good  Old  Cause,  §  2).  As  to  the 
developed  doctrine  there  is  no  doubt  that  Burnet  was  right  and 
Leslie  wrong ;  but  Leslie  is  quite  right  as  to  the  notions  out  of 
which  it  grew,  as  is  shewn  by  the  passage  cited  on  page  19.  That 
the  Fathers  would  have  been  astounded  could  they  have  seen 
their  phrases  about  obedience  to  the  Emperor,  taken  as  proof  that 
they  held  the  theory  of  the  non-jurors,  is  true  enough  ;  that  the 
non-jurors  had  the  least  notion  that  their  theory  was  in  any  way 
different  from  the  sentiment  of  antiquity,  there  is  no  reason  to 
suppose. 

^  Cf.  for  the  development  of  these  doctrines  in  the  Fathers 
and  Early  Middle  Ages,  Carlyle,  Histoi~y  of  Political  Theory  in 
the  West.  Mr  Carlyle  shews  by  many  instances,  that  the  attribu- 
tion of  the  origin  of  kingship  to  the  fall  is  in  no  way  incompatible 
with  the  belief  that  obedience  is  a  religious  duty. 

^  Hotmau  in  the  Franco-Gallia  tries  to  prove  a  similar  rule  of 
election,  but  election  within  one  family,  as  the  ancient  custom  of 
the  Franks. 


EARLY  IDEAS  OF  KINGSHIP 


21 


Earl  Harold  is  quite  exceptional,  and  it  is  at  least 
not  proved  that  his  election  was  legal  \  Although 
the  power  of  the  Crown  was  circumscribed  within 
somewhat  narrow  bounds,  yet  in  various  ways  the 
sanctity  of  the  king  was  asserted ;  his  peace  was  of 
a  high  nature,  above  that  of  other  men^  In  the  rise 
of  the  law  of  treason  under  Alfred  we  see  how  import- 
ant the  protection  of  the  king's  person  is  becoming, 
although  as  yet  it  is  only  as  part  of  the  general  law, 
differing  merely  in  degree  from  treason  to  a  lord,  that 
we  discern  the  germs  of  the  later  code  of  high  treason  \ 

With  the  Norman  Conquest  the  royal  power  ^^ffect 
received  a  vast  accession  oi  strength.     i5ut  the  Norman 
doctrine  of  elective  kingship  gained  additional  force  <^<'"3"«S' 
from  the  circumstances  of  William  and  his  sons. 
The  struggles  of  the  reign  of  Stephen  shew,  on  the 
one  hand,  that  considerations  of  hereditary  right  are 
not  yet  regarded  as  decisive.    On  the  other,  the  mere 
fact  of  the  Empress  obtaining  a  large  measure  of 
support  indicates,  that  men  are  beginning  to  attach 
importance  to  succession  by  primogeniture. 

If  the  theory  of  sovereignty  had  been  recognised 
at  this  time,  there  could  be  no  doubt  that  all  theo- 
retical limits  upon  the  royal  authority  must  have 
been  done  away  with ;  for  the  king  was  immeasurably 
the  strongest  power  in  the  state  ;  but  no  such  theory 
was  held,  and  forms  of  constitutional  checks  remained 
in  theory,  for  a  later  age  to  use  them  in  practice. 

1  Mr  Eound  is  at  issue  with  Mr  Freeman  on  the  point.  Geoffrey 
de  Mandeville,  8,  437,  Norman  Conquest,  in.  App.  C. 

2  See  Stubbs,  Constitutional  Hist.  i.  §  72;  Pollock,  Oxford  Lec- 
tures, 65  ;  and  Pollock  and  Maitland,  Hist,  of  Engl.  Law,  i.  22. 

3  H.  E.  L.  p.  28,  and  Stubbs,  Select  Charters,  p.  62. 


22 


EARLY  IDEAS  OF  KINGSHIP 


1086.'  Again,  the  action  of  the  Conqueror  in  compelling 

all  landowners  to  take  the  oath  of  fealty  to  him 
against  everyone',  including  their  immediate  lords, 
tended  to  widen  the  generality  of  the  duty  of 
obedience  to  the  central  authority,  and  to  form  a 
basis  for  a  complete  theory  of  allegiance.  Its  sig- 
nificance as  guarding  against  the  dangers  of  an 
infinitely  subdivided  sovereignty,  the  worst  evil  of 
feudalism,  has  often  been  pointed  out. 
Prima-  It  was  perhaps  in  another  way  that  the  Conquest 

^Succe^ion  led  most  directly  to  the  development  of  principles, 

to  Crown  ^;}^g^j^  made  up  an  important  element  in  the  theory  of 
assimi-  ...  .  .        .  . 

kited  to  the  Divine  Right  of  Kings.  While  withstanding  the 
once  of  danger  of  introducing  feudal  principles  of  govern- 
fiefs.  ment,  the  Conqueror  introduced,  or,  at  least,  crystal- 
lized into  system  all  the  influences  that  made  for 
a  complete  recognition  of  feudal  principles  of  land- 
tenure  I  The  king  is  now  not  only  the  national 
representative,  but  also  supreme  landowner ;  all  land 
is  held  of  him  mediately  or  immediately.  This,  "  the 
great  generalization  that  governs  the  whole  of  Domes- 
day' "  led  not  only  ultimately  to  the  conception  of 
territorial  sovereignty^  but  assimilated  the  succession 
of  the  Crown  to  the  developing  law  of  the  inherit- 
ance to  fiefs.    The  Norman  kings  were  far  more  than 

1  Stubbs,  Select  Charters,  pp.  81,  2. 

2  Stubbs,  Constitutional  History,  i.  §  94. 

3  Pollock  and  Maitland,  History  of  English  Law,  vol.  i.  p.  46. 
Cf.  also  p.  210:  "  Every  acre  of  English  soil  and  every  proprietary 
right  therein  have  been  brought  within  the  compass  of  a  single 
formula,  which  may  be  expressed  thus  : — Z  tenet  tcrram  illam  de... 
domino  rege." 

•»  Maine,  Ancient  Law,  106. 


EARLY  IDEAS  OF  KINGSHIP 


23 


national  monarchs.  They  were  lords  of  a  great  estate. 
And  the  rules  which  were  beginning  to  govern  the 
succession  to  fiefs,  were  held  to  apply  to  the  Crown. 
The  elective  character  of  kingship  began  to  fall  into 
the  background,  and  the  influences,  leading  to  a 
rigid  rule  of  primogeniture  in  the  case  of  land, 
tended  to  the  same  result  in  regard  to  the  succession. 
Hitherto  the  Crown  had  been  partially  elective,  and 
so  far  as  it  tended  to  become  hereditary,  there  are 
reasons  for  supposing  that  it  might  have  descended, 
as  was  so  often  the  case  in  the  earlier  mediaeval 
monarchies,  by  being  partitioned  among  all  the 
surviving  sons  of  the  deceased  monarch  ^  But  the 
rise  of  the  rule  of  primogeniture,  after  the  kingdom 
had  become  the  greatest  of  estates,  ensured  that 
succession  should  be  impartible.  It  is  only  because 
the  notions  of  public  law  and  sovereignty  were  as  yet 
undeveloped,  that  this  was  possible.  Because  men 
cannot  think  of  the  king  as  other  than  a  natural 
person,  or  of  the  rules  governing  the  succession 
except  as  a  part  of  the  ordinary  law  of  inheritance, 
they  were  driven  to  assimilate  the  succession  to  the 
Crown  to  the  succession  to  a  fief.  The  king  was  the 
landowner  -par  excellence  ;  his  lands  must  descend  by 
the  same  rules  as  those  of  other  men^. 

1  Pollock  and  Maitland,  History  of  English  Law,  ii.  260  sqq. 

^  Ibid.  I.  497,  8.  "  The  king  is  conceived  to  hold  his  lands  by  a 
strictly  hereditary  right.  Between  his  lands  and  the  kingship  it 
would  be  hard  to  distinguish. ...The  descent  of  the  Crown  was 
not  so  unique  a  phenomenon  then  as  it  is  now."  Cf.  also  i.  209. 
"  The  king,  it  is  true,  is  a  highly  privileged  as  well  as  a  very  wealthy 
person  ;  still  his  rights  are  but  private  rights  amplified  and  inten- 
sified." 


24 


EARLY  IDEAS  OF  KINGSHIP 


It  has  been  recently  shewn,  that  it  was  probably 
the  interest  of  the  overlord,  the  desire  to  have  one 
Causes  of  person  responsible  for  the  discharge  of  all  the  feudal 
geliiture.  incidents,  that  led  to  the  developement  of  primo- 
geniture. For  not  primogeniture,  but  equal  division 
is  the  most  natural  mode  of  hereditary  succession. 
But  though  the  holder  might  well  desire  that  his 
lands  should  be  partitioned  among  his  children,  this 
would  not  suit  the  purpose  of  the  Crown,  which 
stepped  in  and  decreed  the  rule  of  impartible 
succession.  And  it  was  owing  to  the  fact,  that  the 
notion  of  hereditary  kingship  only  superseded  that 
of  election,  when  this  rule  was  becoming  universal 
in  regard  to  private  lands,  that  the  succession  to 
the  Crown,  when  it  became  hereditary,  went  by 
promogeniture  and  not  by  partition ^  There  are 
grounds  for  supposing  that  the  Conqueror  divided 
his  dominions  among  his  sons,  on  the  same  principle 
that  actuated  so  many  Frankish  monarchs.  And 
Richard  Coeur  de  Lion  refused  homage  to  his  brother 
Henry,  because  brothers  were  equals  However, 
primogeniture  triumphed  and  was  applied  to  the 
Crown,  as  to  other  estates. 

King  The  '  case  of  the  king: '  so  often  cited  by  Bracton 

John.        .  P  1     1     P  ,     •  , 

IS  a  proof  both  oi  the  incomplete  acceptance,  as  yet, 

of  the  rule  of  primogeniture,  and  of  the  entire 

assimilation  of  the  succession  to  the  Crown  with 

that  to  a  fief    On  the  one  hand,  John's  succession 

to  the  throne  in  defiance  of  the  strict  rule  of 

primogeniture,  and  the  exclusion  of  Arthur  his  elder 

1  Pollock  and  Maitland,  History  of  English  Law,  ii.  260  sqq. 
^  Ibid.  I.  505. 


KARLY  IDEAS  OV  KINGSHIP 


25 


brother's  son,  are  evidence  that  the  theory  of  re- 
presentative primogeniture  was  not  yet  accepted. 
On  the  other  hand,  this  case,  until  the  death  of 
Arthur's  sister  in  1241  detcruiined  it,  was  held  to 
leave  the  question  of  right  undecided,  and  to 
protect  seisin  in  cases  of  private  lands,  as  between 
an  uncle  and  the  son  of  an  elder  brother,  who  had 
not  himself  held  the  land". 

John's  case  is  also  noteworthy  as  containing  in 
the  reported  speeches  of  Archbishop  Hubert ^  the 
strongest  possible  assertion  of  the  right  of  election, 
and  (afterwai'ds  at  the  coronation)  of  the  binding 
character  of  the  oath.  On  the  other  hand,  the 
territorial  character  of  kingship  was  coming  into 
prominence.  John  is  Rex  Angliae,  no  longer  Rex 
Anglorinu;  while  the  recent  assumption  of  the  style 
royal  affords  an  indication  of  a  dawning  notion  of 
the  mystical  and  official  personality  of  the  king. 

John's  reign  is  further  important  on  account 
of  the  submission  to  the  Pope.  So  long  as  the 
position  accepted  by  John  was,  with  whatever  reluc- 
tance, recognised  at  all,  and  the  suzerainty  of  the 
Pope  admitted  by  the  payment  of  tribute,  the  state- 
ment that  the  king  was  under  no  one  save  God  was 
the  expression  of  patriotic  aspiration  rather  than  of 
actual  fact.  But  the  final  rejection  of  the  Pope's 
^  demands  in  1366,  and  the  protest  against  Papal  claims 
with  which  it  was  accompanied ^  formed  the  basis  of 
the  later  assertion  that  '  this  realm  of  England  is  an 

1  Bracton,  Ve  Legibus  Angliae,  ff.  267  b,  282,  327  b. 
^  Mattli.  Paris,  Chronica  Majora,  ii.  454,  5. 
Rot.  Pari.  II.  290. 


26 


EARLY  IDEAS  OF  KINGSHIP 


Empii'e  '  and  contained  the  germ  of  that  appeal  to 
the  grace  of  God  against  the  will  of  the  Pope, 
which  was  the  raison  d'etre  of  the  theory  of  Divine 
Right. 

Further  it  is  to  be  noted,  that  in  this  case  as 
in  others  the  Papacy,  though  willing  to  loosen  the 
bonds  of  allegiance  in  order  to  compass  its  own  ends, 
shewed  no  preference  for  constitutional  government 
as  such.  The  tj'ranny  of  both  John  and  his  son 
leant  largely  upon  Papal  support. 

Magna   Charta   needs   no   mention,   save  for 
the   well-known   fact,   that   the   sixty-first  clause 
approaches  more  nearly  than  any  other  statute  of 
English  History  to  giving  legal  sanction  to  the  right 
of  resistance,  and  making  government  and  obedience 
truly  a  matter  of  compact. 
Edward         The  acccssion  of  Edward  I.  marks  a  further  step 
dates' 'from  in  the  developement  of  hereditary  kingship  and  in 
election,  removal  of  the  significance  and  necessity  of 

not  coro-  .  "  . 

nation.      the  coronation  ceremony.     The  story  is  well  known. 

Edwai'd  was  absent  upon  the  crusade  at  the  time  of 
his  father's  death  ;  the  barons,  dreading  the  evils  of 
a  lengthy  interregnum,  elected  him  king  four  days 
after.  He  reigned  from  the  date  of  his  election, 
and  was  not  crowned  for  nearly  two  years.  The 
crown  was  claimed  by  hereditary  right,  and  the 
will  of  the  barons  ^  Thus  coronation,  as  a  neces- 
sary element  in  kingship,  sank  into  abeyance,  and 
the  notion,  that  though  kings  may  die,  the  authority 
of  the  Crown  remains  undisturbed,  began  to  arise. 
Not  yet  will  men  assert  that  'the  king  never  dies  ' ; 

^  Rymer,  Foedera,  i.  497. 


EARLY  IDEAS  OF  KINGSHIP 


27 


but  the  germ  of  the  notion  is  here,  and  those  who  in 
later  ages  argued  that  coronation  was  merely  a 
ceremony,  and  that  the  heir  to  the  throne  was 
'  every  inch  a  king '  without  it  were  right  in  claiming, 
that  they  were  merely  following  the  precedent  of 
Edward's  reign'. 

With  the  accession  of  Edward  II.  election  itself  FAection 
fell  into  disuse,  and  he  succeeded  his  father  with  no  ^''^^^g] 
interregnum.  Thus  the  pressure  of  circumstances 
^  and  the  influence  of  feudal  land  law  brought  about 
the  triumph  of  the  notion,  that  the  right  of  inherit- 
ance is  the  only  essential  element  in  making  a  king. 
The  right  to  the  Crown  was  no  longer  that  of 
election  or  of  coronation,  but  that  of  the  next  heir, 
whom  God  alone  can  make.  If  we  have  not  yet 
come  to  the  days  when  hereditary  right  was  regarded 
as  indefeasible,  and  no  breach  was  admitted,  however 
short,  in  the  continuity  of  the  succession,  yet  there 
were  by  the  beginning  of  the  fourteenth  century  all 
the  elements  of  the  theory.  The  Crown  had  become 
a  birthright. 

But  the  reign  of  Edward  II.  had  a  deeper  signifi-  Groivth  of 
cance.     It  has  been  pointed  out^,  that  the  very  llg^alpre- 
developement  of  a  constitutional  system  led  to  a  royative. 
counter-attempt  to  exalt  and  liberate  from  control 

1  Majestas  Intemcrata,  p.  45. 

2  Stubbs,  Const.  Hist.  ii.  §§  247,  273.  "  On  the  one  side  every 
advantage  gained  by  the  parliament  is  regarded  as  one  of  a  veiy 
limited  number  of  privileges  ;  on  the  other  every  concession  made 
by  the  crown  is  made  out  of  an  unlimited  and  unimpaired  poten- 
tiality of  sovereignty  The  theory  of   sovereignty  held  by 

Henry  III.  is  far  more  definite  than  that  of  Henry  II.,  and  that 
of  Eichard  II.  than  that  of  Edward  I." 


28 


EARLY  IDEAS  OF  KINGSHIP 


the  royal  prerogative.  "  For  every  assertion  of 
national  right  there  is  a  counter  assertion  of  royal 
autocracy."  The  growth  of  Parliament,  as  the 
source  of  legislative  activity,  emphasized  the  dis- 
tinction between  the  power  of  the  Crown  in  Parlia- 
ment and  the  personal  power  of  the  king.  Kings 
now  will  insist  upon  their  personal  privileges,  upon 
their  right  to  issue  ordinances,  to  misinterpret  at 
their  pleasure  the  petitions  of  Parliament,  in  trans- 
forming them  into  statutes.  Thus  the  whole  con- 
stitutional struggle  of  the  fourteenth  century  raged 
round  the  vexed  question  of  the  royal  prerogative. 
On  the  one  hand  popular  rights  had  been  crystallized 
into  a  definite  system  ;  on  the  other  the  kings  exalted 
their  personal  position,  and  tended  to  regard  it  as 
a  thing  apart,  above  the  constitutional  machinery. 
Before  Parliament  became  an  essential  element  in 
the  state,  there  was  no  reason  for  the  king  to  claim 
extra-legal  authority,  save  in  taxation,  for  with 
trifling  limitations  he  was  the  source  of  law.  He 
was  in  his  own  person  not  only  supreme  landowner, 
but  the  fountain  of  justice,  the  executive  authority, 
and  the  amender,  if  not  the  maker  of  law.  But 
when  Parliament  gained  the  right  to  petition  for 
new  laws,  and  when  in  1322  this  right  was  made 
exclusive',  it  was  natural  for  the  king  to  distinguish 
between  his  rights  in  his  own  person  and  his  authority 
in  Parliament.    The  growth  of  Parliament,  then,  is 

'  ^Kevocatio  Novarum  Ordinationum.'  It  is  remarkable,  that  the 
Act  was  passed  in  defence  of  the  king,  not  of  the  people.  The 
object  is  to  secure  the  king's  freedom  from  any  lords  ordainers 
of  the  future.    Statutes  of  the  Realm,  i.  189. 


EARLY  IDEA5?  OF  KINGSHIP 


29 


the  origin  not  only  of  tlu;  innncKJiate  strugglo  around 
royal  prerogative  and  privilege,  but  also  of  the  dis- 
tinction between  the  personal  and  political  capacity 
of  the  king,  of  which  a  later  age  was  to  hear  so  much. 

Nor  was  the  matter  a  trifling  one  at  the  time.  Distinc- 
Even  in  the  days  of  Edward  II.  it  became  a  matter  appgam 
of  controversy.  The  distinction  was  apparently  one  ^^<^twe.cu 
of  the  arguments  for  the  banishment  of  Gaveston.  personal 
The  ordinances  of  1311  accuse  him  of  "encroaching""!^,.  , 

°  political 

to  himself  royal  power  and  royal  dignity  and  lording  capacity 
it  over  the  state  of  the  King  and  the  People,"  terms 
which  the  Long  Parliament  might  have  applied  to 
Strafford.  Later  on,  however,  in  the  trial  of  the  De 
Spensers,  the  doctrine  that  there  is  any  distinction 
between  the  king  and  the  Crown  was  condemned', 

1  The  following  is  the  passage  condemned: — Stitutes  of  the 
Realm,  i.  182.  "  Homage  and  the  Oath  of  Allegiance  is  more  by 
reason  of  the  Crown  than  by  reason  of  the  Person  of  the  King, 
and  it  bindeth  itself  more  unto  the  Crown  than  unto  the  Person ; 
and  this  appears  in  that  before  the  Estate  of  the  Crown  hath 
desRended,  no  allegiance  is  belonging  to  the  Person  ;  wherefore  if 
the  King  by  chance  be  not  guided  by  Keason,  in  right  of  the  Crown, 
his  liege  Subjects  are  bound  by  the  Oath  made  to  the  Crown  to 
guide  the  King  and  the  Estate  of  the  Crown  back  again  by  reason, 
or  otherwise  the  Oath  would  not  be  kept.  Now  were  it  to  be 
asked,  how  they  ought  to  guide  the  King?  Whether  by  Course  of 
Law,  or  by  Violence?  By  Course  of  Law  a  man  will  not  be  able  to 
get  Eedress,  for  he  will  have  no  judges  but  such  as  are  the  King's, 
in  which  case,  if  the  Will  of  the  King  be  not  according  to  Reason 
he  certainly  will  have  only  Error  maintained  and  confirmed ; 
Wherefore  it  behoveth,  in  order  to  save  the  Oath,  that  when  the 
King  will  not  redress  the  matter  and  remove  that  which  is  hurtful 
to  the  People  at  large,  and  prejudicial  to  the  Crown,  it  is  to  be 
determined,  that  the  thing  be  removed  by  Violence,  for  he  is  bound 
by  his  oath  to  govern  the  people  and  his  Liege  Subjects,  and  his 


30 


EARLY  IDEAS  OF  KINGSHIP 


No  theory 
of  sove- 
reignty in 
England 
during 
middle 
ages. 

/ 


Its  forma- 
tion pre- 
vented by 
feudalism. 


and  writers  of  the  seventeenth  century  were  able  to 
point  to  the  statute  exiling  thein,  as  proving  the 
iniquity  of  the  notion,  that  it  was  lawful  to 
levy  war  against  the  king's  person  in  defence  of 
his  Crown. 

It  was  the  glory  of  England,  that  it  was  subject 
not  to  the  '  written  law,'  but  to  the  ancient  customary 
law  of  the  race,  although  many  modern  ordinances, 
such  as  the  assizes  of  Henry  II.,  had  become  a  part 
of  it.  This  fact,  perhaps,  as  much  as  the  prevalence 
of  the  theory  of  feudalism,  prevented  during  the 
middle  ages  the  growth  of  any  theory  of  sovereignty, 
save  in  the  Empire.  The  doctrine  would  indeed  have 
seemed  ludicrous  to  an  English  lawyer  of  the  twelfth 
or  thirteenth  century.  The  feudal  idea,  despite  all 
the  eflforts  of  the  central  power,  was  still  strong,  and 
there  is  perhaps  no  more  essential  element  in  feudal 
theory,  than  the  belief  in  the  infinite  divisibility  of 
sovereign  power.  Doubtless,  by  the  fiction  of  dele- 
gacy, it  is  possible  to  stretch  even  the  feudal  system 
on  the  Procrustean  bed  of  Austinian  sovereignty. 
Yet  at  least  it  will  be  admitted,  that  no  country,  in 
which  feudalism  was  at  all  a  force,  whether  as 
forming  theory  or  influencing  practice,  could  possibly 
have  suggested  to  the  acutest  mind  the  conception 
of  an  omnipotent  sovereign  with  neither  rights  nor 

Liege  Subjects  are  bound  to  govern  in  aid  of  him  and  in  his 
default."  It  will  be  seen  that  these  ideas  were  exactly  those  of 
the  Long  Parliament.  The  author  of  Majestas  Intemerata  makes 
much  use  of  the  fact  that  the  distinction  between  the  political  and 
personal  capacity  of  the  king  is  a  part  of  "the  Spensers'  treason." 
Coke,  Calvin's  Case  (7  Reports,  11  a)  calls  it  a  "damnable  and 
damned  opinion." 


EARLY  IDEAS  OF  KINGSHIP 


31 


(lutios.  The  relations  of  the  Duke  of  Normandy,  or 
hiter  of  Gascony  to  the  King  of  France,  the  Scottish 
overloj-dship,  the  question  of  the  fi-anchises  (which  it 
required  all  the  dexterity  of  the  Crown  lawyer  to 
get  recognised  as  merely  delegations  of  royal  power') 
must  have  been  fatal  to  any  attempt  towards  the 
formation  of  a  theory  of  sovereignty.  Indeed  the 
nature  of  the  feudal  tie  operated  to  suggest  the 
notion  that  government  is  based  upon  contract. 

Nor  again  was  such  a  theory  needed.  So  long  The  doc- 
as  custom  is  regarded  as  the  main  source  of  law  and  ^^^g^Lsanj 
the  province  of  legislation  is  restricted,  the  abstract 
truth  of  Austin's  doctrine  may  remain,  but  its 
practical  applicability  is  gone.  For  the  idea  of 
sovereignty  to  arise,  there  must  be  a  developed 
state  and  a  considerable  measure  of  legislative 
activity.  Both  these  conditions  were  unfulfilled 
at  the  time  of  Bracton.  The  only  sources,  from 
which  such  a  theory  might  have  been  drawn,  were 
the  civil  and  the  canon  law.  But,  if  any  writer 
with  a  turn  for  the  Roman  jurisprudence  should 
have  directed  his  attention  thereto,  facts  would 
have  been  too  strong  for  him.  The  claims  of  the 
Pope,  recognised  and  unrecognised,  the  existence 
of  the  canon  law,  the  wide  sphere  of  spiritual 
jurisdiction,  and  benefit  of  clergy  would  have  been 
a  sufficient  bar  to  the  formation  of  any  such  doctrine ^ 
The  theory  of  sovereignty  is  only  of  value,  when 
applied  to  states  which  are  organised ;  at  this  time 

1  See  Maitland,  Introduction  to  Select  Pleas  in  Manorial  Courts ; 
also  History  of  English  Law,  i.  559. 

2  Ibid.  I.  160,  1. 


32 


EARLY  IDEAS  OF  KINGSHIP 


La  ivyers 
ascribe 
almost 
sovereign 
rights 
to  the 
King,  yet 
do  not 
treat  him 
as  sove- 
reign. 


Writers  ^ 
in  seven- 
teenth 
century 
misunder- 
stood 
Bracton. 


the  organization  of  national  states  was  only  in  the 
making'. 

If,  then,  it  be  borne  in  mind  that  no  theory  of 
sovereignty  was  or  could  be  held  by  Bracton,  it  will 
not  be  surprising  to  find  him  ascribing  to  the  king- 
rights,  which  apparently  amount  to  little  less  than 
complete  sovereignty,  while  in  set  terms  the  king- 
is  declared  to  be  under  the  law.  Many  passages 
there  are  which  to  modern  ears  sound  inconsistent, 
such  as  the  statement,  that  the  king  is  under  no 
one  but  God,  and  yet  is  not  above  the  law.  Where 
then  is  the  source  of  law  ?  Whence  is  its  sanction 
derived,  if  neither  the  King  nor  any  other  person  or 
body  of  persons  are  above  it  ?  This  inconsistency  is 
apparent  only  to  us,  because  we  are  unfamiliar  with 
the  notion  that  custom  can  be  truly  sovereign.  The 
blunder  which  a  modern  reader  might  be  tempted 
to  make  on  first  opening  Bracton  is  that  of  either 
charging  the  author  with  contradicting  himself  or  of 
understanding  the  law,  under  which  the  king  is  said 
to  be,  in  some  fanciful  sense  as  equivalent  to  no  more 
than  moral  or  natural  law.  This  mistake  was  actu- 
ally committed  by  the  uncritical  pamphleteers  of  the 
seventeenth  century.  Circumstances  had  generated 
in  them  the  idea  that  in  every  state  there  must  be 
some  sovereign.  Observing  that  Bracton  and  Britton 
ascribed  to  the  king  rights  which  seemed  of  the  essence 
of  sovereignty,  they  jumped  to  the  conclusion  that  in 
the  thirteenth  century  the  power  of  the  Crown  was 
believed  to  be  free  from  all  legal  limitations.  Unless 
they  were  setting  forth  the  moral  and  religious 

'  See  Maine,  Early  Ilistoi-y  of  Institutions,  Lectures  xii,  xiii. 


EARLY  IDEAS  OF  KINGSHIP 


33 


duties  of  the  king,  they  ignored  all  that  was  said 
about  his  being  subject  to  the  law  ;  and  this  without 
conscious  dishonesty.  They  were  wedded  to  the  idea 
of  sovereignty,  and  seeing  that  in  Bracton's  view  the 
sovereignty,  if  not  vested  in  the  king,  was  nowhere 
to  be  found,  they  adopted  what  seemed  to  them  the 
only  possible  alternative,  and  inferred  that  the  power 
of  the  Crown  in  the  thirteenth  century  was  legally 
unlimited.  Once  the  fact  is  grasped,  that  the  royalist 
writers  of  the  seventeenth  century  were  almost  as 
deeply  imbued  with  the  idea  of  sovereignty  as  was 
Austin,  the  course  which  they  took  is  seen  to  be 
natural.  It  has  been  said  that  "  had  it  [the  theory 
of  sovereignty]  been  accepted  in  the  thirteenth 
century,  the  English  kingship  must  have  become  a 
tyranny,  for  nowhere  else  than  in  the  person  of  the 
king  could  the  requisite  sovereignty  have  been 
found^."  If  this  be  so,  it  follows  that  those,  who  had 
no  suspicion  that  the  theory  was  not  accepted  in  the 
thirteenth  century,  must  have  imagined  that  English 
kingship  at  that  time  was  an  absolute  monarchy. 

Hence  it  is  not  surprising,  that  royalist  writers  of  They 
the  seventeenth  century  quote  Bracton  only  less  [^^a"^''* 
frequently  than  the  Bible,  and,  although  they  must  ^^"^^'^"^ 
have  read  his  distinct  assertion  to  the  contrary,  regard  the  King 
him  with  evident  bona  fides  as  irrefragable  testimony  ^jjo^y^g 
to  the  truth  of  their  doctrine,  that  England  in  the 
Middle  Ages  was  an  absolute  monarchy,  tempered 
only  by  (always  iniquitous)  revolutions^ 

1  Pollock  and  Maitland,  History  of  English  Law,  i.  160. 
^  Majestas  Intcmerata,  a  pamphlet  of  50  pages,  is  crowded  with 
appeals  to  the  authority  of  Bracton,  Britten,  &c.   Cf.  also  Jenkins 
F.  3 


34 


EARLY  IDEAS  OF  KINGSHIP 


They  had       They  found  it  declared  repeatedly  that  the  king 
fivundsfor     Grod's  vicar^ ;  that  all  persons  in  the  realm  are 
their  view  under  him  ;  that  he  is  under  none  but  God ;  that  he 
phrases'of  has  no  peer :  that  if  he  break  the  law,  it  is  enough 
^nd^°^     that  he  await  the  vengeance  of  God,  for  none  of  his 
Britton.    subjects  may  punish  him^ ;  that  no  judgment  to 
make  void  an  act  or  charter  of  the  king  is  valid  ^; 
that  our  Lord  the  King  has  ordinary  jurisdiction  over 
all  in  the  land ;  that  all  (save  spiritual)  rights  are  in 
his  hand^ ;  that  he  was  created  king  to  the  end  that 
he  should  do  justice  to  all ;  that  the  Lord  should  sit 
in  him' ;  that  a  jury  may  be  fined  for  deciding  against 
the  king" ;  that  none  may  impose  on  him  without  his 
consent  the  necessity  to  amend  an  injury  of  his  own 
doing,  for  necessity  may  not  be  imposed  on  him^ 
They  found  that  Britton  regards  the  whole  common 
law  as  an  emanation  from  the  royal  authority  ^  that 
he  declares  his  regality  to  be  inalienable  ^  and  the 
king  to  be  the  sole  interpreter  of  his  wilP". 

Redivivus.  Co  well  quotes  Bracton's  authority  for  his  assertion 
that  "the  king  is  above  the  law  by  liis  absolute  power"  (Prothero, 
Statutes  and  Constitutional  Documents,  409,  and  note). 

1  Bracton,  i.lb.  ^  Ibid.  ff.  5  6,  6,  369. 

3  Ibid.  f.  34.  *  Ibid.  £f.  55  b,  412. 

Ibid.  i.  107.  *  Ibid.  f.  290  b. 

7  Ibid.  e.  368  b  and  389  b. 

8  Britton,  i.  1. 

"  Ibid.  I.  221.  "Rois  aussi  ne  porrount  rien  aliener  les  dreitz 
de  lour  coroune  ne  de  lour  reaut6,  qe  ne  soit  repellable  par  lour 
successours."  This  is  on  the  same  Unes  as  the  arguments  of 
seventeenth  century  writers,  to  prove  that  all  the  rights  of 
Parliament  and  people  are  but  concessions,  which  may  at  any 
moment  be  recalled. 

'0  Britton,  i.  414. 


EARLY  IDEAS  OK  KINGSHIP 


35 


It  is  not  wonderful  that  writers  of  an  uncritical  The  pa$- 
age,  imbued  with  the  idea  that  there  must  be  in  l^nu-ary 

the  State  some  power  above  the  law,  should  have  . 

cxvlciiiici 

supposed  that  the  lawyers  of  the  thirteenth  century  away. 
regarded  the  king  in  that  light.  It  was  easy  to 
ignore  what  was  said  about  the  king  being  subject 
to  law',  to  treat  it  as  a  fine  phrase,  or  to  suppose  that 
nothing  more  was  intended  than  their  own  distinc- 
tion between  a  king,  who  rules  according  to  the  law 
of  nature,  i.e.  morality,  and  the  tyrant  who  governs 
by  caprice.  The  seventeenth  century  royalists  were 
willing  enough  to  admit  the  desirability  of  the 
sovei'eign  governing  by  fixed  rules ;  only  they 
denied  that  he  was  legally  incapable  of  altering 
them.  They  no  more  desired  a  king  to  govern 
without  law,  than  a  modern  writer,  asserting  the 
omnipotence  of  Parliament  and  its  power  to  abro- 
gate all  existing  laws,  would  desire  that  each  suc- 
cessive Parliament  should  repeal  all  the  acts  of  its 
predecessors.  They  too  wished  the  king,  in  obedi- 
ence to  Divine  Law,  to  govern  according  to  the 
law  of  the  land  ;  in  this  sense  they  understood 


1  Bracton,  ff.  5  b,  34.  The  lengthy  passage,  in  which  a  king 
who  rules  without  law  is  treated  as  the  vicar  not  of  God,  but  of  the 
devil,  would  serve  to  strengthen  the  view  of  the  royalists,  that 
Bracton  regarded  moral  law  alone  as  superior  to  the  Crown.  They 
must  have  explained  these  passages  as  suggested ;  for  it  was 
impossible  for  any  writer,  however  dishonest,  to  ignore  the  strong 
phrases  about  the  supremacy  of  the  law  used  in  the  very  passages, 
which  they  quote  as  asserting  the  power  of  the  Crown.  Bracton 
was  a  book  constantly  in  the  hands  of  their  opponents,  and,  without 
some  such  justification  in  their  minds,  they  could  not  have  faced 
them.    See  next  note. 


3-2 


36 


EARLY  inEAS  OF  KINGSHIP 


Bracton's  assertion,  that  the  king  was  under  God 
and  the  law^ 

'  Only  God  Another  notion  to  be  found  in  Bracton  must  have 
'anheir^^  contributed  much  towards  generating  the  belief  in  the 
sacredness  of  primogeniture.  The  view  of  the  lawyers 
of  the  thii  teenth  century,  that  unly  God  can  make 
an  heir'',  although  expressed  with  reference  to  private 
inheritance,  must  have  tended  greatly  to  strengthen 
the  sentiment  in  favour  of  strict  hereditary  succession. 
It  led  men  to  regard  this  mode  of  the  devolution  of 
the  Crown,  as  in  some  mysterious  way  superior  to 
the  merely  human  method  of  election.  The  birth 
of  an  heir  is  the  judgment  of  God,  and  has  the  same 
sanctity  attached  to  it,  as  the  ordeal  or  the  lot. 
Men,  if  they  elect,  may  well  make  a  bad  choice ; 
God,  though  we  may  not  fathom  His  reasons,  will  not 
make  an  heir  without  good  grounds. 
Summary.  To  sum  up,  it  appears  that  Kingship  has  ever 
been  regarded  as  in  some  especial  way  protected  by 
a  Divine  authority ;  that  the  influence  of  Christianity 
has  in  all  ages  been  held  to  support  this  view ;  that 

1  The  strongest  evidence  that  this  was  the  common  view  is  the 
remarkable  passage  in  which  Filmer  boldly  grapples  with  the  most 
awkward  of  all  Bracton's  statements.  He  declares  that  the  words 
asserting  that  the  king  has  a  superior  in  his  court  of  Earls  and 
Barons  are  to  be  explained  of  the  king's  own  consent  to  this  check, 
which  has  thus  no  real  authority,  for  the  king's  consent  may  be 
withdrawn.  After  boldly  sweeping  aside  this  difficulty,  he  naturally 
enough  declares,  that,  in  saying  the  king  was  under  the  law,  Bracton 
merely  meant  that  he  ought  to  govern  by  means  of  it ;  he  is  thus 
under  the  directive,  but  not  the  coactive  power  of  the  laws.  {Free- 
holders' Grand  Inquest,  p.  12.)  This  method  of  escaping  the 
dilemma  is  precisely  that  attributed  above  to  the  royalist  writers. 

2  Bracton,  f.  62  6. 


EARLY  IDEAS  OF  KINGSHIP 


87 


English  Kingship  from  being  elective  in  a  single 
family  had  become  purely  hereditary  by  the  foui  teenth 
century ;  that  coronation  had  ceased  to  be  regarded 
as  necessary  to  the  making  of  a  king ;  and  that  in 
the  systematic  presentment  of  English  law  in  the 
thirteenth  century  there  were  ample  materials  for 
men  in  a  later  age,  devoid  of  the  historical  sense  and 
imbued  with  the  theory  of  sovereignty,  to  suppose 
that  the  English  Kingship  towards  the  close  of  the 
Middle  Ages  was  strictly  hereditary  and  uncon- 
ditioned by  constitutional  restraints. 


CHAPTER  III 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


The  Holy  The  mediaeval  notion  of  an  ideal  state  is  em- 
^mpire  bodied  in  the  theory  of  the  Holy  Roman  Empire. 
embodies    The  failure  of  events  to  give  practical  effect  to  the 

mediceval    ^ ,  ,    ,         ,  .  j      n      i  •  i 

ideal  of  theory  generated  coiitroversies,  out  oi  v^rhich  was 
a  state.  developed  the  root  idea  of  the  later  doctrine  of  the 
Divine  Right  of  Kings.  The  dream  was  a  noble 
one,  of  a  perfect  state  with  two  elected  heads,  one 
temporal  and  one  spiritual,  working  in  harmony  for 
the  maintenance  of  peace  and  for  the  ordered  conduct 
of  life  among  Christians,  in  a  polity  that  should  com- 
bine all  that  was  of  lasting  value  in  the  system  of  the 
The  theory  Roman  Empire  with  all  that  was  essential  to  the 

unwork-  .      .  i  /-i    i  -n 

able.  realization  of  the  City  of  God.  But  for  the  most 
part  it  remained  but  a  dream,  save  for  a  few  fitful 
intervals  of  brilliancy  under  Charles  the  Great  or 
Otto  III.  or  even  Henry  III.  Yet  the  contro- 
versies of  the  seventeenth  century  took  the  shape 
they  did  owing  to  the  earlier  struggles  between 
^  Popes  and  Emperors.  If  there  had  been  no  Holy 
Roman  Empire,  or  if  there  had  been  no  failure  to 
realize  the  ideal  embodied  in  it,  there  would  have 


THIO  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  39 


been  no  theory  of"  the  Divine  Right  of  Kings'. 
The  whole  standpoint  of  political  thought  during  Contro- 
the  period  of  the  Reformation  is  explicable  only  „iout 
^bv  being  referred  to  its  counterpart  in  the  ideas  ^''V^'''"'"' 

*^  °  ^  claims 

and   the   methods   of  the   men,   who   wrote   on  form  ex- 
behalf  of  the  Papal   or  Imperial  pretensions  to^j'^J^^" 
sovereignty.    One,  who  has  not  entered  into  t]\e  of  Divine 
feelings  of  the  earlier  age,  can  scarcely  fail  to 
be  hard  put  to  it  to  comprehend  those  of  the 
later.     A  study  of  the  controversies  that  raged 
around  the  claims  of  Pope  and  Emperor,  will  reveal 
the  genesis  of  most  of  the  notions  embodied  in 
later  theories ;  and  will  bring  us  into  contact  with 
the  mental  atmosphere,  in  which  alone  such  theories 
could  take  shape. 

The  Holy  Roman  Empire,  however   shadowy  Connec- 
its  power,  was,  so  long  as  men  made  it  an  aim  I'heohgy 
to  work  for,  a  testimony  to  the  most  important  ""'^ 
characteristic  of  political  thought  till  the  close  gf^"'''*''*' 
the  seventeenth  century — the  belief  in  the  intimate 
connection  of  politics  and  religion.    The  ideal  of  the 
Empire,  with  Christ  as  its  King  and  His  two  vice- 
gerents upon  earth,  was  that  of  a  theocracy.  This 
is  the  explanation  of  the  otherwise  strange  fact,  that 
men  should  ever  have  believed  in  so  unworkable 
a  theory,  as  that  of  two  equal  heads  of  the  State. 
Christ  is  the  real  head  of  the  Empire,  and  Pope  and 
Emperor  are  both  conceived  rather  as  executors 
armed  from  above  with  administrative  powers  than 

1  "  The  claim  to  Divine  Right  was  first  put  forward  by 

Imperialist  and  Royalist  opponents  of  the  Papacy."  (Gardiner, 
History  of  England,  viii.  182.) 


40     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


as  themselves  ultimate  authorities'.  There  is  no 
difficulty  in  having  two  superior  officials  indepen- 
dent of  one  another,  if  they  are  both  regarded  as 
essentially  subordinate  to  a  single  supreme  governoi-. 
It  was  the  vividness  with  which  men  realized  the 
position  of  Christ  as  Lord  of  the  Christian  common- 
wealth, that  could  alone  render  possible,  as  an  ideal, 
a  state  in  which  temporal  and  ecclesiastical  juris- 
diction existed  side  by  side,  and  each  claimed 
'  coactive '  power. 

That  the  ideal  State  is  the  kingdom  of  God 
upon  earth,  and  that  no  other  can  be  an  object  of 
veneration  to  a  Christian,  is  the  notion  that  lies 
at  the  root  of  the  Holy  Roman  Empire.  It  is  only 
as  the  immediate  character  of  Christ's  Kingship  is 
lost  sight  of,  and  the  two  subordinate  authorities 
begin  to  claim,  each  for  itself,  perfect  independence 
and  supremacy,  that  there  is  revealed  the  insoluble 
character  of  the  problem  involved  in  the  recognised 
positions  of  the  Pope  and  the  Emperor.  As  this 
process  continues,  first  the  Pope,  as  most  plainly 
the  depositary  of  Divine  Authority,  afterwards  the 
Emperor,  as  called  to  his  office  by  God's  election  and 
appointment,  claims  to  be  the  true  and  supreme  head 
of  the  Christian  commonwealth,  by  Divine  Right 
Lord  of  the  world.  But  the  notion  of  an  earthly 
polity  has  for  neither  party  disengaged  itself  as  yet 

'  "Opposition  between  two  servants  of  the  same  king  is  incon- 
ceivable, each  being  bound  to  aid  and  foster  the  other :  the 
cooperation  of  both  being  needed  in  all  that  concerns  the  welfare 
of  Christendom  at  large."  (Bryce,  Holy  Roman  Empire,  p.  102 ; 
and  the  whole  of  Chap.  vii. ) 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  41 


from  that  of  the  heavenly  kincrdoiu.  Both  Ein))oror 
and  Pope  are  forced  to  claim  Divine  Right  for  their 
pretensions,  for  each  believes  himself  to  be  head 
of  something  more  than  a  temporal  state  founded 
from  motives  of  human  convenience.  They  are  not 
merely  the  directors  of  an  artificial  contrivance  for 
satisfying  ephemeral  needs ;  they  conceive  them- 
selves the  chosen  captains  of  the  divine  organization 
revealed  by  Christ,  as  part  of  the  eternal  order  of 
the  universe. 

And  thus,  whatever  claims  of  supremacy  are 
made  for  either  Pope  or  Emperor,  it  remains  that 
the  theory  upon  which  they  are  based  is  essentially 
religious.  Neither  side  dreams  for  a  moment  of 
asserting,  that  the  sphere  of  theology  can  be  separated 
from  that  of  politics,  or  that  the  source  of  political 
theory  is  to  be  found  save  in  revelation.  Neither 
side  imagines  that  the  views  of  its  opponents  can  be 
discredited,  unless  their  opinions  as  to  religious  duty 
and  the  drift  of  Christ's  teaching  can  be  shewn  to  be 
false.  Those  who  deny  the  political  supremacy  of 
the  Pope  are  heretics,  says  Boniface  VIII.  Those 
who  affirm  it  are  heretics,  says  Marsiglio  of  Padua. 
Theology  can  in  some  way  teach  men  the  true 
theory  of  government,  the  relations  between  various 
powers  in  the  State,  and  the  mutual  duties  of 
sovereign  and  subjects.  No  one  doubts  this,  and  it 
remains,  with  whatever  admixture  of  philosophical 
and  historical  argument,  the  fundamental  basis  of 
political  controversy,  not  only  throughout  the  Middle 
Ages,  but  until  the  theory  of  Divine  Right  has 
passed  away,  and  men  have  abandoned  the  attempt 


42     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


to  defend  or  controvert  a  doctrine,  which  has  dis- 
appeared. 

Position  Further,  the  position  of  the  Emperor  as  in  theory, 
of  Em-      Jqj.^  q£  ^j^g  world,  must  have  had  an  influence, 

peror  oars  ' 

the  way  to  however  slight,  in  retarding  the  development  of  any 
lovTreigT'^  clear  notions  of  sovereignty  in  the  national  states. 
ty  in        In  England,  with  its  belief  in  the  Imperial  position 

national  .        .  .    .  i  r 

States.  of  English  kings',  this  influence  may  have  been  small 
or  virtually  non-existent.  Yet  the  fact  that  an 
ignorant  writer  in  the  fourteenth  century  can  declare 
that  a  statute  which  he  dislikes  is  invalid,  because 
it  has  received  no  confirmation  from  the  Emperor^,  is 
evidence  not  indeed  of  the  truth  of  his  statement, 
but  of  the  existence  in  men's  minds  of  some  lingering 
belief,  a  relic  from  earlier  times,  in  the  Imperial 
claims  to  universal  sovereignty.  In  regard  to  France 
the  writings  of  William  of  Ockham  are  evidence  of 
a  belief  equally  untrue  to  actual  fact,  that  the 
Emperor  in  the  fourteenth  century  was  still  possessed 
of  inalienable  rights  of  sovereignty  over  the  French 
kings^. 

1  Cf.  Freeman,  Norman  Conquest,  i.  132,  3,  and  Appendix  B, 
552—556. 

2  Mirror  of  Justices,  Lib.  v.  c.  5,  p.  195 :  cf.  also  the  passage  : 
"  Jurediccion  est  poer  a  dire  droit.  Cele  poer  dona  deux  a  Moysen, 
e  eel  poer  unt  ceaux  qi  tenant  oreson  lu  en  terre,  si  com  lapostoill 
e  lempereur  e  de  souz  euz  tient  ore  le  Roi  cele  poer  en  son  royaume." 
(L.  IV.  c.  3,  p.  123.) 

^  "  Licet  Imperator  possit  multas  libertates  concedere  regi 
Franciae  et  aliis ;  tamen  uuUo  modo  potest  regnum  Franciae 
vel  aliud  totaliter  ab  Imperio  separare,  ut  nullo  modo  subsit 
Imperio.  Quia  hoc  esset  destruere  Imperium,  quod  non  potest 
Imperator."  (Dialogus,  Pars  iii.  Tr.  ii.  Lib.  ii.  e.  7 ;  Goldast,  ii.  908.) 
In  the  ninth  chapter  Ockham  declares  all  kings  to  be  subject  to 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  43 


Moreover,  in  the  notion  that  the  Holy  Roman  Possibility 

.  .  .         <•    1      11       ■  of  nucha 

Empire  was  but  the  contmuation  ot  the  Empire  ot  iueury  for 

the  Caesars,  the  Flavii,  and  of  Justinian,  there  was  Emperor. 

the  material  for  a  theory  of  sovereignty,  which  the 

nations  did  not  as  yet  possess.    But,  if  the  action 

of  any  power  should  operate  to  lower  the  prestige  of 

the  Emperor  and  to  place  kings  upon  a  level  with 

him,  so  that  an  English,  or  French  king  can  speak 

of  himself  as  Emperor^,  it  would  be  only  natural  for 

the  pretensions  asserted  by  the  civilians  on  behalf  of 

the  Emperor  to  pass  over  to  them,  and  to  be  regarded 

as  of  the  essence  of  all  kingship  that  is  real,  i.e. 

Imperial^.     The  mere  use  in  later  times  of  the 

phrase  Imperial  rights  as  equivalent  to  sovereignty 

is  evidence  of  the  source,  from  which  the  theory  was 

derived  ^ 

the  Emperor,  even  though  he  has  not  commanded  it,  and  they  are 
unaware  of  the  fact. 

1  Richard  II.  in  legitimating  the  Beauforts  speaks  of  himself 
as  "Entier  Emperour  de  son  Roialme."  [Rot.  Pari.  iii.  343.) 
Raoul  of  Praelles  declares,  "Un  chacun  Roy  est  chief  de  son 
royaunie,  et  Empereur  de  son  Empire."    (Goldast,  i.  51.) 

2  Bishop  Jewel  asserts  that  what  was  the  Emperor's  right  "is 
now  a  common  riglit  to  all  princes,  for  so  much  as  kings  are 
now  possessed  in  the  several  parts  of  the  whole  Empire."  Apology. 
Works,  III.  98. 

5  The  Statute  of  Appeals  in  the  well-known  words  of  its 
preamble  "this  realm  of  England  is  an  Empire"  is  an  instance  of 
this.  Here  it  is  plain  that  rights  of  empire  are  equivalent  to 
rights  of  sovereignty. 

Phrases  of  this  sort  can  only  be  explained  by  the  fact  that 
there  was  a  belief,  that  true  sovereignty,  i.e.  independence  and 
unquestioned  authority,  had  been  derived  from  an  appropri- 
ation by  each  kingdom  of  rights  originally  confined  to  the 
Empire. 


44     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


Papacy  This  work  was  performed  by  that  power  in 

Emperors  the  Empire,  which  overshadowed  and  eventually 
to  a7i        destroyed   for  all  practical  purposes  that  of  its 

equality  •'  r  r  r 

with  other  temporal  head.  It  may  indeed  be  doubted,  whether 
Kings.  ^j^g  claims  of  the  Emperor  as  lord  of  the  world,  to 
be  universal  sovereign  and  international  arbiter^ 
could  ever  have  been  brought  into  effect,  as  the  new 
peoples  awoke  to  the  consciousness  of  national  life. 
As  a  fact,  however,  it  is  certain  that  this  was 
prevented  by  the  action  of  the  Papacy'-^.  In  order  to 
establish  their  own  claims  to  supremacy,  the  Popes 
were  driven  to  minimize  the  prerogatives  of  the 
Emperor,  and  to  recognise  in  him  less  instead  of 
more  authority,  than  they  did  in  the  case  of  other 
kings.  Thus  all  monarchies  were  free  to  appropriate 
such  rags  and  trappings  of  his  ancient  majesty,  as 
still  belonged  to  the  '  ever  august  increaser  of  the 
Empire '  in  the  shape  of  theories  of  power  that 
was  never  exercised  and  claims  of  sovereignty  that 
was  never  effective.  In  the  contest  of  the  Popes 
with  the  Emperors  was  evolved  a  theory  that  was 
destined  to  play  an  important  part  in  future  anti- 
papal  conflicts,  and  to  perform  during  the  period  of 
the  Reformation,  the  work  that  was  too  hard  for  it, 
Origin  of  when  Pope  John  XXII.  crushed  Lewis  of  Bavaria, 
^j^^^g"'^ -^This  theory  was  tlie  divine  right  of  secular  govern- 
Mght  of    raents  to  he  free  from  Papal  control.     It  took  shape 

'  See  Bryce,  Holy  Roman  Empire,  Chap.  xv.  The  Empire  as 
an  International  Power. 

^  Wyclif  distinctly  declares  the  division  of  the  Empire  to  be 
due  to  the  claim  of  the  clergy  to  secular  power.  De  Officio  Regis, 
252. 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  45 


in  the  fourteenth  century  as  the  Divine  Right  of  the 
Emperors.  With  various  additions,  of  less  importance 
than  is  commonly  supposed,  it  was  to  re-form  itself 
in  the  sixteenth  and  seventeenth  centuries  as  the 
Divine  Right  of  Kings. 

It  is  in  the  gradual  rise  of  Papal  claims  to  Theory  of 
universal  supremacy,  that  are  first  put  forth  those  prcmacy  '. 
notions  which  form  the  basis  of  all  theories  of 
Divine  Right ;  the  conception  of  sovereignty,  of  the 
absolute  freedom  from  positive  laws  of  some  power 
in  an  organized  human  society ;  the  claim  that  this 
sovereignty  is  vested  in  a  single  person  by  God,  and 
that  resistance  to  the  sovereign  is  the  worst  of  sins. 
With  two  powers  within  the  State  in  the  relative 
positions  of  Pope  and  Emperor,  it  was  inevitable  that 
sooner  or  later  there  should  arise  between  them  a 
struggle  for  supremacy.    The  condition  of  coordinate  Need  of 
authority  in  two  diverse  but  ill-defined  spheres  ^hl^^me  a 
could  not  be  one  of  lasting  duration.    Sooner  or  source  of 

.  11-         r  11-1  conflict 

later  the  desire  oi  power,  coupled  with  a  sense  between 
of  the  need  of  unity  in  the  society,  must  bringf  ""■'^ 

.  °  Emperors. 

either  temporal  or  spiritual  head  to  claim  for  itself 
absolute  supremacy.  There  could  not  fail  to  be 
awakened  the  sense,  that  the  unity  of  the  Christian 
commonwealth,  whether  as  an  earthly  state  or  as  a 
reflection  of  the  Divine  order,  could  be  secured  only 
by  the  recognition  of  the  ultimate  authority  as 
vested  in  one  or  other  of  the  two  powers.  Nor  was 
it  doubtful  which  of  them  had,  as  a  fact,  the  best 
claim  to  superiority.  At  the  best  of  times,  the 
Emperor  was  hard  put  to  it  to  maintain  his  position, 
even  as  king  of  Germany,  against  the  disintegrating 


46     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


Emperor  tendencies  of  feudalism ;  while  his  authority  over 
^tro7ig^and  other  nations  as  lord  of  the  world,  was,  save 
possessed   perhaps  under  Charles  the  Great,  of  the  most 

of  uni- 

versal  shadowy  kind.  The  Pope  on  the  other  hand  could 
authority.  j^Uggg  |^}^.^^  with  some  limitations  his  jurisdiction  was 
admitted  by  all  western  nations  ;  and  was  effectively 
exercised.  In  every  nation  there  was  a  large  class 
of  men  subject  to  his  tribunals,  and  exempt  from 
the  ordinary  law,  while  in  a  number  of  matters  only 
constructively  ecclesiastical,  such  as  testamentary 
and  matrimonial  cases,  the  Canon  law  regulated  the 
lives  of  the  laity,  and  drove  numbers  of  them  to  the 
airia  to  buy  justice.  It  is  not  surprising  that  there 
^  was  developed  against  the  Imperial  claims  a  com- 
plete theory  of  Papal  sovereignty.  Later  ages  might 
dispute  as  to  whether  this  sovereignty  was  direct  or 
indirect,  immediate  or  constructive.  But,  from  the 
days  of  Hildebrand  to  those  of  Bonifoce  VIII.  and 
John  XXII.,  the  theory  goes  on  developing  and  it  is 
y  of  course  a  theory  of  sovereignty  by  Divine  Right. 
The  doctrine  of  the  '  plenitudo  potestatis '  is  an 
assertion  of  the  Pope's  claim  to  sovereign  power,  as  a 
direct  grant  from  God  to  S.  Peter  and  his  successors'. 

1  The  views  of  S.  Thomas  Aquinas  on  the  subject  are  com- 
paratively moderate.  Yet  he  declares  all  kings  to  be  subject  to 
the  Pope,  and  alleges  the  great  authority  of  the  Druids  in  secular 
politics  as  a  proof  of  the  natural  superiority  of  sacerdotal  power 
to  royal.  {De  Regimine  Principum,i.  I'i.)  The  author,  Ptolemy  of 
Lucca,  of  the  latter  part  of  the  treatise  goes  farther;  he  proclaims 
with  emphasis  the  doctrine  of  the  'plenitudo  potestatis '  as  one 
of  absolute  monarchy,  vested  in  the  Pope,  and  quotes  the  stock 
instances  of  Papal  jurisdiction  over  the  Empire.  S.  Thomas, 
it  is  noticeable,  carefully  avoids  all  debateable  ground  in  his 


THE  HOLY  ROMAN  EMPIRp;  AND  THE  PAPACY  47 


The  canonist  could  allege  the  donation  of  Constantine  Aryume 
as  evidence  of  temporal  dominion,  and  with  good{;uj^^f 
show  of  justice  point  to  the  '  translation  of  the 
Empire '  from  east  to  west,  as  proof  that  from  the 
time  of  Charles  the  Great,  the  Emperor's  authority 
was  derived  from  the  Pope.  In  support  of  the 
Pope's  claim  to  judge  of  the  fitness  of  the  Electors' 
choice,  he  could  urge  the  fact  that  no  Emperor  was 
more  than  Emperor-elect,  until  he  had  received 
coronation  at  the  hands  of  the  Pope.  He  could  find 
in  Scripture  many  passages  asserting  the  superior 
dignity  of  priestly  power  to  royal ;  and  could  explain 
away,  as  he  pleased,  any  which  bear  at  first  sight  an 
opposite  sense.  The  image  was  ready  to  hand  of  the 
greater  and  the  lesser  lights  signifying  (it  was  plain) 
the  spiritual  and  the  temporal  power ;  the  two 
swords  which  Christ  declared  to  be  "  enough,  not 
too  much  "  in  the  hands  of  His  disciples,  would 
form  an  apt  illustration  of  the  Papal  authority  in 
temporal  as  well  as  spiritual  matters.  And  so  it  is 
proclaimed  that  the  Pope  cannot  be  bound  by  the 
Emperor^  that  Imperial  laws  are  void,  if  they  conflict 
with  the  Canon  law^  although  the  Church  may 

commentary  on  Romans  xiii. ;  but  the  position  there  taken 
up  appears  to  differ  widely  from  that  afterwards  assumed  by 
Boniface  VIII.  (For  a  fuller  account  of  the  political  theory  of 
S.  Thomas  see  Poole,  Illustrations  of  the  History  of  Medi<eval 
Thought,  Chap.  viii.    The  Hierarchical  Doctrine  of  the  State.) 

'  "A  saeculari  Potestate  Pontifex  prorsus  nec  solvi  nec  ligari 
valet."    (Decret.  Dist.  xcvi.  c.  7.) 

^  Decret,  Dist.  x.  c.  4.  The  usual  method  of  argument 
is  that  of  the  next  chapter,  "  Suscipitisne  libertatem  verbi? 
Libenter  accipitis  quod  lex   Christi   sacerdotali  vos  subjicit 


48     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


employ  the  laws  of  the  Emperor  to  assist  her',  that 
the  Emperor  as  the  son,  not  the  sovereign,  of  the 
Church  is  subject  to  the  Pope',  for  did  not  Con- 
stantine  give  the  Crown  and  all  kingly  dignity  to 
Pope  Sylvester^  ?  Further,  the  translation  of  the 
Empire  is  a  final  proof  of  the  Pope's  supremacy 
over  the  Emperor  whom  he  had  set  up  of  his 
own  mere  and  proper  motion-*.  Against  the  Latin 
Emperor  of  Constantinople  urging  the  command  of 
S.  Peter  to  obey  the  secular  prince,  Innocent  III. 
can  answer,  that  it  applies  only  to  those  who  hold 
their  temporalities  from  him,  or  else  that  obedience 
is  enjoined  only  for  the  Lord's  sake  and  may  there- 
fore  presumably  be  neglected,  if  the  Lord  speaking 
through  His  vicar  should  order  otherwise,  or,  thirdly, 
that  the  command  to  obey  him  is  not  without 
qualification.  He  can  point  to  the  commission  of 
Jeremiah,  "  I  have  set  thee  over  the  nations  and 
over  the  kingdoms  to  root  out  and  to  pull  down,  and 
to  destroy,"  and,  after  drawing  edifying  conclusions 
fi"om  the  lights  in  the  firmament,  finally  crush  his 
Imperial  disputant  with  the  commission  to  S.  Peter^ 

potestati  atque  istis  tribnnalibus  subdit?  Dedit  nam  et  nobis 
potestatem,  dedit  et  principatum  multo  perfectiorem  pritici- 
patibus  vestris.  Aut  numquid  justum  vobis  videtur,  si  cedat 
spiritus  carni,  si  terrenis  caelestia  superentur,  si  divinis  prae- 
ferantur  humana  ?  " 

1  Decret.  Dist.  x.  c.  7. 

2  Ibid.  Dist.  xcvi.  c.  11,  "Si  Imperator  Catholicus  est,  filius 
non  praesul  ecclesiae." 

3  Ibid.  c.  1.3. 

*  Decret.  Greg.  Lib.  i.  Tit.  vi.  c.  34. 

'  Ibid.  Tit.  XXXIII.  c.  6.  There  is  a  delightful  explanation  of 
obedience  being  ordered  not  to  '  the  king,'  but  merely  '  the  king  at 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  49 


It  is  no  new  doctrine,  that  the  theory  of  Papal  A  theory 
supremacy,  with  the  power  of  releasing  subjects  °4vy«(y  hy 
from  their  allegiance  and  deposing  kings,  involves  a  ^j^j^"^ 
claim  to  universal  monarchy'.    It  is  clear,  that  the 
^   doctrine  of  the  plenitudo  potestatis  embodies  the 
most  important  elements  of  the  theory  of  sovereignty, 
the  notion,  that  is,  that  unity  in  a  state  is  only  to 
be  obtained  by  the  unquestioned  supremacy  of  some 
one  authority,  whose  acts  are  subject  to  no  legal 
criticism.    Further,  it  asserts  the  Divine  institution 
of  monarchy,  as  a  form  of  government.    This  was 
the  position  claimed  by  the  Papacy ;  men  were 
driven  thus  to  formulate  its  pretensions  by  the  sense 
of  the  need  of  unity  in  the  commonwealth.   They  do 
so  by  asserting  the  unity  of  the  Church  and  of  the 
^  universe,  the  claims  of  the  Pope  to  derive  his  power 
immediately  from  God  alone,  and  to  be  subject  to 
none  other.    This  is  expressed  most  clearly  in  the  The  Bull 
Bull  Unam  Sanctam.    There  Boniface  VIII.  after  sanctum. 

supreme,'  "  Nec  pure  sit  subscriptum  regi  praecellenti,  sed  iiiter- 
positum  forsitan  non  sine  causa,  tauquam." 

1  An  instance  of  the  habit  of  alleging  the  Papal  sovereignty  in 
proof  of  the  superiority  of  monarchy  to  other  forms  of  govern- 
ment is  the  following  passage  of  Barclay: — "Deus  enim  in  suo 
peculiari  populo  hunc  gubernandi  modum  expressit,  unnm  illis 
ducem  judicemque  praeficiens.  Ejusdem  sic  et  Christus  typura 
nobis  edidit,  sacratissimam  illam  monarfihiam  in  persona  Petri 

instituens  Neue  in  tarn  augusto  perfectdque  imperio  imper- 

fectam  regimiuis  formam  post  se  sineret  inolescere ;  unum 
omnium  hierarcham  esse  voluit,  quern  tola  ubique  Ecclesia 
principem  agnoscat  pastorem.  Quae  res  satis  declarat,  quanto 
caeteris  gubernandi  speciebus  gratior  sit  unius  principatus,  ad 
quern  omues  fere  nationes,  quantumuis  barbarae  et  feroces,  occulta 
quadam  naturae  vi,  et  primorum  parentum  exemplis  incitantur." 
(De  Regno,  82.) 

F.  4 


50     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


asserting  emphatically  the  unity  of  the  Church  and  of 
all  government  and  speaking  of  the  unrent  coat  of 
Christ,  declares  that  a  body  politic  with  two  heads  is 
a  monstrosity.  He  employs  the  illustration  of  the  two 
swords,  declaring  that  the  material  sword  is  to  be 
used  for,  not  by  the  Church  ;  and  goes  on  to  proclaim 
that  the  temporal  power  must  be  subject  to  the  spiri- 
tual, that  derelictions  on  the  part  of  the  temporal 
power  may  be  judged  by  the  spiritual,  but  that  the 
supreme  spiritual  power  is  accountable  to  God  alone. 
He  quotes  the  commission  to  Jeremiah  as  proof  that 
he  is  invested  immediately  by  God  with  sovereign 
authority ;  and  closes  by  applying  to  himself  the 
command,  "  Whoso  resisteth  the  power,  resisteth 
the  ordinance  of  God^" 
Same  Now,  here,  it  is  to  be  noted,  are  the  methods  and 

as  that  arguments,  which  subsist  until  the  close  of  the 
of  seven-  seventeenth  century.  The  Pope  proclaims  for  him- 
century,  self  a  theory  of  complete  sovereignty ;  he  is  king, 
the  one  true  king,  accountable  to  God  alone ;  he 
asserts  that  unity  is  the  soul  of  government,  and 
that  every  government  must  have  some  supreme 
head  as  the  centre  of  its  unity;  that  the  Christian 
commonwealth  is  a  monarchy  with  this  supreme 
authority  vested  in  himself ;  he  denies  that  there 
can  be  two  ultimate  authorities  in  the  common- 
wealth, one  temporal,  one  ecclesiastical ;  one  must  be 
subject  to  the  other.  He  claims  that  his  power 
comes  from  God  alone,  and  is  derived  from  no 
earthly  intermediary.  He  declares  that,  on  no 
pretence  whatsoever,  is  resistance  allowable  to  this 

1  Extrav.  Commun.  Lib.  i.  Tit.  viii.  c.  7. 


THE  HOLY  ROMAN  EMPlHli  AND  THE  PAPACY  51 


divinely  ord;iined  sovereign  ;  while,  in  order  to  prove 
his  doctrine  of  non-resistance  to  Papal  commands,  he 
employs  the  very  text,  which  a  later  age  makes  the 
bulwark  of  its  defence  against  the  Pope  in  the  claim 
that  resistance  to  the  king  as  God's  vicar  is  worthy  of 
damnation. 

Here  then  is  a  theory  of  government  by  Divine 
Right,  the  exact  converse  of  the  theory  of  the  Divine 
^  Right  of  Kings.    It  will  be  strange  if  the  latter  doc- 
trine is  not  found  to  have  itsraison  d'etre  as  a  contradic- 
tion and  a  counter-theory  to  that  of  Papal  supremacy. 

Once  more,  it  is  to  be  remarked  that  the  theory  ^  theory 
described  above  is  essentially  one  of  obedience,  and  lnce,^tot 
of  obedience  from  motives  based  upon  religion.    It  liberty. 
is  needful  to  bear  this  fact  in  mind.    In  the  pursuit 
of  their  own  aims  the  Popes  were  frequently  driven 
to  dissolve  the  bonds  of  allegiance  in  communities. 
Their  supporters  will  speak  slightingly  of  the  duties 
of  subjects  to  their  sovereign.   In  their  zeal  for  Papal 
authority,  they  will  be  found  developing  that  theory 
of  an  original  compact,  which  lies  at  the  root  of  all 
theories  of  popular  rights  in  the  seventeenth  century. 
Yet  this  was  but  an  accident  of  the  Papal  position. 
Of  its  essence  was  the  claim  to  the  implicit  obedience 
of  all  men,  based  upon  even  stronger  sanctions  of  eter- 
nal punishment,  than  was  the  Divine  Right  of  Kings. 

Hildebrand  indeed  may  argue  that  all  secular 
government  is  of  diabolic  origin'.  John  of  Salisbury 
may  quaintly  decide  the  question  as  to  whether  it  be 
lawful  to  flatter  a  tyrant,  by  the  suggestion  that  it 
is  lawful  to  flatter  a  man  whom  it  is  lawful  to  kilP. 

1  Migne,  Patrologia,  148,  595.  ^  Policraticus,  iii.  15. 

4—2 


52     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


With  evident  leaning  to  the  more  lenient  view,  S. 
Thomas  Aquinas  may  debate  the  point  as  to  whether 
a  nation  acting  in  common  may  restrain  the  excesses 
of  a  tyrant,  and  declare  in  an  obiter  dictum  that 
regal  as  distinct  from  political  power  is  a  con- 
sequence of  the  FalP.  Lastly,  John  XXII.,  who  in 
the  Bull  Si  fratrum  takes  up  a  position  of  complete 
sovereignty  and  claims  that,  the  Imperial  authority 
being  merely  a  delegation  fi'om  the  Pope,  it  reverts 
to  him  during  an  interregnum^,  may  seem  to  ascribe 
to  the  Emperor  the  same  merely  official  position  as 
delegate  of  another  earthly  jDower,  as  was  attributed 
to  kings  by  Whig  theorists.  Yet  all  this  is  not 
because  these  men  believe  government  and  obe->^ 
dience  to  be  things  of  small  importance  with  '  the 
trail  of  the  serpent  over  them  all.'  It  is  because 
government  is  in  their  eyes  a  sacred  thing,  and 
obedience  an  integral  part  of  the  Divine  Law,  that 
they  cannot  conceive  of  secular  government,  as 
possessing  any  beyond  subordinate  authority.  All 
power  is  of  God ;  therefore  the  temporal  power 
is  only  secondary,  and  must  be  subject  to  the 
spiritual.  Obedience  to  governors  is  a  Divine  in- 
junction; therefore  in  the  last  resort  all  men  must 
obey  the  Pope,  the  depositary  of  Divine  authority  as 
against  King  or  Emperor,  whose  position  is  either, 
as  some  say,  of  merely  human  origin,  or,  as  in  another 
view,  a  grant  from  God  through  the  mediation  of  the 
Pope.    Men  must  obey  a  king,  although  obedience 

1  Be  Regimine  Principum,  i.  6.    He  is  quite  clear  that  private 
individuals  are  forbidden  to  resist  the  sovereign. 
^  Extrav.  Joh.  Tit.  v.  c.  1. 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  53 

involves  disloyalty  to  an  immediate  lord,  the  king's 
vassal ;  but  the  Emperor  is  God's  vassal,  therefore 
he  may  be  deposed  at  the  bidding  of  the  Pope, 
whose  word  is  the  voice  of  God.  So  f;ir  indeed  were 
the  Popes  from  claiming  on  behalf  of  subjects  any 
general  rights  against  their  sovereign,  that,  as  in  the 
case  of  John  or  Henry  III.  in  England  or  of  the 
Spanish  monarchy,  they  ever  shewed  themselves 
stern  supporters  of  royal  rights,  where  they  felt 
sure  of  the  king.  The  very  claim  to  release 
subjects  from  their  oath  of  allegiance  implies  that 
the  oath  is  binding  without  such  release  on  the 
part  of  the  Pope.  In  essence  the  theory  of  Papal 
sovereignty  is  a  doctrine  of  obedience,  of  the  Divine 
institution  of  all  government,  '  simply  and  strictly 
so  called,'  and  of  perfect  sovereignty  vested  in  a 
single  head.  It  is  merely  an  accident  that  the 
theory  was  accompanied  by  views  of  the  rights  of 
resistance  against  governors  of  the  secondary  order, 
whose  authority  is  merely  delegated.  Absolute 
monarchy  deriving  its  title  from  God  alone,  and 
obedience  as  a  Divine  command,  are  the  root  ideas 
of  Papal  theories  of  dominion. 

Now  against  these  claims  it  was  needful  for  the  ^  counter 
Imperialists  to  manufacture  some  weapon.     The  needed 
materials  were  ready  to  hand.     The  Pope  had-^"''^'"^ 

.  ^  Empire, 

claimed  entire  sovereignty  because  the  common- 
wealth was  one,  and  two  authorities  in  it  are  a 
monstrosity ;  the  Imperialists  must  do  the  same. 
The  Pope  had  claimed  rights  of  jurisdiction  over 
the  Emperor  as  shewn  by  the  donation  of  Con- 
stantine  and  the  translation  of  the  Empire;  the 


54     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 

Imperialists  must  argue  that  the  donation  of 
Constantine  if  a  fact,  was  invalid,  and  that  the 
translation  of  the  Empire  had  been  misinterpreted. 
They  could  maintain  that,  since  the  Empire  was 
inalienable,  Constantine  could  not  have  given  lasting 
authority  to  the  Papacy,  and  that  the  Pope,  far  from 
creating  Charles  the  Great  Emperor,  had  merely 
assented  to  a  fait  accompli ;  that  so  far  was  the 
Pope  from  possessing  a  right  to  review  the  choice 
of  the  electors  of  the  Holy  Roman  Empire,  that 
the  Emperor  possessed  the  right  of  reviewing  the 
choice  of  the  conclave,  and  of  examining  into  the 
fitness  of  a  proposed  occupant  of  the  Papal  chair; 
and  that,  as  a  fact,  this  right  had  been  exercised. 
Lastly,  the  Pope  had  claimed  Divine  Right  for  his 
sovereignty,  the  Emperor  must  claim  it  for  his.  He 
must  demonstrate  that  the  Empire  is  held  of  God 
immediately  and  not  of  the  Pope ;  that,  since  the 
Emperor  is  God's  vicar,  he  cannot  be  the  Pope's 
vassal ;  that  the  passages  of  Scripture  alleged  in 
support  of  the  duty  of  unlimited  obedience  to  the 
Pope  are,  if  rightly  interpreted,  evidences  of  the  un- 
conditioned authority  of  the  Emperor ;  that  the 
words  "  my  kingdom  is  not  of  this  world  "  shew  the 
falsity  of  the  pretended  Papal  supremacy ;  that  the 
true  heretic  is  not  he  who  denies,  but  he  who  asserts 
that  supremacy ;  that  the  command  to  "  Render 
unto  CjBsar  the  things  that  are  Caesar's,"  and  the 
words  of  Christ  to  Pilate,  "  Thou  couldest  have  no 
power  at  all  against  me,  unless  it  were  given  thee 
from  above,"  prove  at  once  that  the  Pope  has  no 
universal  sovereignty  and  that  secular  government 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  55 


is  of  Divine  appointment.    In  a  word,  to  the  Divine  Divine 
Right  of  the  Pope  must  be  opposed  the  Divine  Empa-m- 
Right  of  the  Emperor.  opposed 

...  .  I  •      •       1      /■  1  Divine 

Imperialist  writers  claim  in  the  first  place  that  Riykt  of 

"  unity,  the  soul  of  government "  is  entirely  lost,  if 

there  be  two  distinct  powers  with  competing  systems  needed 

of  law  and  iurisdiction  claiming  authority  at  the  ""* 

....  common- 
same  time ;  for  "  every  kingdom  divided  against  wealth. 

itself  cannot  stand."    This  is  the  burden  of  a  great 

part  of  the  Defensor  Pads  of  Marsiglio'  of  Padua,  of 

the  great  Dialogus  of  William  of  Ockham^  and  of 

*  Defensor  Pacis,  i.  17  ;  the  whole  of  the  second  part  is  taken 
up  with  a  demoHtion  of  the  Papal  pretensions,  the  great  cause  of 
disturbance  and  discord  in  the  Empire.  Cf.  Hobbes's  Leviathan, 
Bk.  III. ,  "  The  Kingdom  of  Darkness,"  where  the  Church  of  Rome 
is  regarded  in  the  same  way  as  above  all  things  the  enemy  of  peace 
in  a  State. 

'■^  E.r).  the  following  passage:  "  Non  solum  ilia  societas  est 
propinqua  desolationi  et  ruinae,  quae  est  contra  se  divisa;  sed 
etiam  ilia  quae  ex  modo  regendi  est  disposita  ad  divisionem  et 
divisioni  propinqua.  Sed  si  communitas  fidelium  habeat  duas 
partes  quarum  una  habeat  judicem  summum,  et  alia  alium; 
communitas  ilia  est  disposita  ad  divisionem  et  divisioni  pro- 
pinqua." Ockham  is  feeling  his  way  to  the  notion  of  territorial 
sovereignty,  though  it  was  entirely  alien  from  the  early  theory  of 
the  Empire.  "Potestas  non  solum  est  impatiens  consortis  super 
eosdem  subjectos  ;  sed  etiam  impatiens  est  consortis  in  eodem  loco  ; 
sicut  enim  judex  aliquis  nollet,  quod  subditi  sui  essent  alterius 
subditi;  ita  nollet  quod  aliquis  alius  haberet  potestatem  in  loco, 
ubi  subditi  sui  morantur.  Ergo  non  solum  est  periculosa  societas 
fidelium,  si  sint  plures  judices  super  eosdem  populos  vel  subditos  ; 
sed  etiam  periculosa  est  societas  fidelium,  si  in  eodem  loco  etiam 
super  diversos  subditos  fideles  fuerint  plures  summi  judices  con- 
stituti,  et  ita  non  expedit  quod  clerici  habeant  unum  summum 
judicem  ecclesiasticum,  scilicet  ])apam;  et  laici  unum  summum 
judicem  scilicet  imperatorem ;  cum  clerici  et  laici  in  eisdem  locis 
simul  commaneant  Nulla  communitas  simul  viventium  vita 


56     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


the  De  Monarchia  of  Dante \  A  large  section  of  the 
work  of  William  of  Ockham  could  have  no  more 
appropriate  title  than  "  the  anarchy  of  a  mixed 
monarchy." 

Need  of         This   passionate   sense   of  the   importance  of 
The  Suae   unity  in   the   State   is  the  ground  of  much  of 
an  aniu-    the  sentiment  not  only  against  the  Pope,  but  also 
^mwmrchy.  against  those  who  propose  any  but  a  single  person 
as  head  of  the  State.     It  cannot  be  denied  that 
"  unity,  the  soul  of  government,"  is  theoretically 
more  completely  realised  in  a  monarchy  than  in 
any  other  form  of  government.     At  least  there  is 
no  danger  of  the  sovereign  power  dividing  from 
within  and  splitting  into  two  hostile  factions,  as 
may  be  the  case  with  government  under  a  repre- 
sentative system.    There  could  be  no  fear  of  a 
schism  in  Prince  or  Pope  as  there  might  be  in 
Parliament  or   Council.     If  this   be   taken  into 
account,  and  the  reaction  against  Papal  claims  be 
admitted  as  a  ground  of  the  feeling  that  unity  in 
the  State  must  be  secured  at  all  costs,  there  will  be 
less  inclination  to  blame  the  men  in  the  seventeenth 


politica  est  optime  ordinata,  nisi  sit  civiliter  una.  Unde  fideles 
sicut  sunt  unum  corpus  in  Christo  {ad  Rom.  i.  2),  ita  etiam  debent 
esse  corpus  seu  collegium  in  vita  civili:  sed  communitas  ilia  quae 
habet  diversos  sumruos  judices  seu  diversa  capita  sive  rectores. 
nou  est  civiliter  una;  sicut  illi,  qui  non  habent  unum  regem,  non 
sunt  unum  regnum."    {Dialoyus,  Pars  iii.  Tr.  ii.  Lib.  m.  c.  19.) 

1  Dante  argues  that  God  cannot  will  what  is  contrary  to 
nature ;  apparently  he  means  by  this  that  God  cannot  approve  of 
any  competing  jurisdiction  within  the  Empire,  or  of  any  earthly 
authority  claiming  to  restrain  the  acts  of  "  the  lord  of  the  world." 
(De  Monarchia,  ui.) 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  57 


or  the  fourteenth  century',  who  argued  that  not  only 
must  there  be  one  sovereign  and  not  two,  but  that 
*^  the  sovereign  must  be  one  person,  or  else  unity 

cannot  be  secured.    The  noteworthy  fact  is  that  Similarity 
the  arguments  employed  are  precisely  the  same  °{eniTin 
in  the  fourteenth  as  in  the  seventeenth  century. 
Ockham's  long  argument  to  shew  that  the  Emperor  wenth  cen- 
is  "over  all  persons  and  all  causes  supreme^"  is 
on  exactly  the  same  lines  as  those  of  later  times 
on  behalf  of  royal  authority  against  Papal  inter- 
fcrence ;  save  that  Ockham  treats  the  Pope  as  an 
authority  within  the  State,  while  English  writers 
regard  him  as  a  foreign  sovereign. 

There  appear  other  elements  of  the  theory  of  Other 
sovereignty.    It  is  a  maxim  with  anti-papal  contro-  theory 
versialists  that  sovereignty  is  inalienable.     Thus  of  sove- 
Dante'  and  Ockham^  are  found  arguing  that  the  ^''^^"^^^ 

1  Dante  indeed  carries  the  argument  further  and  makes  it  the 
basis  of  his  proof  of  the  need  of  a  universal  monarchy.  De 
Monarchia,  Lib.  i. 

2  Dialogus,  Pars  iii.  Tr.  ii.  Lib.  iii.  cc.  10—23.  What  could 
express  more  completely  the  claim  to  be  'supreme  over  all  causes' 
than  the  following  passage?  "Conchulitur  ergo,  quod  communitas 
fidelium  non  erit  optime  gubernata  civiliter,  etiam  quantum  ad 
vitam  politicam,  nisi  tota  et  omnis  pars  ejus  habeat  unum  judicem 
et  rectorem  supremuni,  de  cujus  jurisdictione  immediata  vel 
mediata  in  onini  casu  ab  eo  vel  a  judicibus  inferioribus  eo  omnis 
alius  pro  quocunque  delicto  debeat  judicari."  (Ibid.  c.  20.)  The 
words  I  have  italicised  shew  that  secular  politics  are  not  the 
primary  consideration  of  the  author.    Supra,  pp.  39 — 41. 

3  De  Monarchia,  iii.  10. 

^  Ockham's  argument  is  that  the  Empire,  not  having  been 
founded  by  the  Pope,  could  not  afterwards  have  become  subject  to 
him;  any  action  of  the  Emperor  with  that  object  is  invalid,  for  it 
destroys  the  Empire.    Dialogus,  Pars  iii.  Tr.  ii.  Lib.  i.  c.  18. 


58     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


Contro- 
versy 

/about 
corona- 
tion and 
tinction,  as 
in  later 
times. 


y 


donation  of  Constantine  must  be  invalid,  for  the 
Emperor  may  not  destroy  the  Empire.  Ockham 
declares  that  sovereignty  can  neither  be  divided, 
nor  diminished,  nor  alienated' ;  although  his  notions 
of  obedience  arc  not  those  of  later  times.  In  the 
seventeenth  century  all  these  notions  reappear.  The 
king  grants  privileges  to  Parliament,  but  sovereignty 
is  inalienable,  therefore  they  may  be  revoked.  He 
governs  by  the  law,  because  he  is  virtuous,  not  be- 
cause he  is  obliged  by  it.  He  cannot  by  diminishing 
his  sovereignty  prejudice  the  rights  of  his  successors. 

Even  the  special  points,  around  which  later 
controversy  rages,  are  discussed.  The  importance 
of  coronation  is  insisted  upon  by  Papalists,  as  a 
means  of  proving  that  the  Emperor  holds  his  office 
from  the  Pope,  exactly  as  in  the  later  times  it  is 
held  to  be  evidence  of  a  compact  between  king  and 
people.  The  author  of  the  latter  part  of  the  De 
Regimine  Principum  regards  the  ceremony  of  unction, 
as  evidence  of  the  authority  over  kings  vested  in 
the  Pope,  the  interpreter  of  the  Divine  Law ;  the 
king  is  the  Lord's  anointed ;  and  therefore  the  Lord 
by  means  of  His  vicar  may  exercise  authority  over 
him^.  Controversialists  assert,  on  the  other  side, 
precisely  as  those  of  later  times,  that  coronation  has 
no  necessary  place  in  conferring  royal  or  imperial 
power,  which  exists  equally  before  it'.    There  are 

1  "Romanum  imperium  non  potest  minui  nec  dividi,  saltern 
absque  consensu  tacito  vel  expresso  communitatis  mortalium." 
{Dialogus,  Pars  in.  Tr.  ii.  Lib.  i.  c.  31.) 

2  De  Regimine  Principum,  iii.  16. 

^  "  Omnem  gladii  potestatem  et  administrationem  temporalem 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  59 


arguments,  quite  in  the  manner  of  Hickes,  to  prove 
that  an  intidel  may  be  the  lawful  recipient  of  obedi- 
ence ;  special  stress  is  laid  on  the  case  of  J ulian  the 
Apostate,  just  as  French  writers  on  behalf  of  Henry 
IV.  and  English  opponents  of  the  Exclusion  Bill 
were  to  argue,  that  since  the  primitive  Christians 
were  loyal  to  Julian,  the  fact  of  the  heir  being  a 
heretic  could  not  bar  his  claim  to  the  succession. 

But  this  was  not  enough.   It  was  vain  to  demon-  More 
strate  the  necessity  of  unity  in  a  stable  common-  needed. 
wealth.    The  Papalist  was  as  ardent  an  enthusiast 
for  unity  as  the  Imperialist.    Indeed,  had  the  dream 
of  Papal  sovereignty  ever  been  entirely  realised  in 
practice,  it  would  not  have  been  of  the  lack  of  unity 
in  the  governing  authority  that  men  would  have 
complained.     It  was  useless  to  prove  the  incon- 
venience of  the  Papal  claims  or  the  utility  of  the 
Imperial  power.     What  could  avail  considerations 
of  expediency  and  theories  of  utility  against  an 
opponent,  who  claimed  to  exercise  power  derived  by 
a  direct  grant  from  God  ?  The  only  effective  method  Divine 
of  controverting  the  Papal  pretensions  was  to  ela-  ^^^^ 

borate  a  counter  theory  that  the  Emperor's  rights  claimed 
A-      ,  c        n  A  ^       for  the 

came  direct  from  (iod.  Emperor. 

Dante  perceived  the  necessity  of  this  more  clearly  Dante 

than  some  other  Imperialist  writers.    This  it  ^f^g^^^^fig 

which  gives  to  the  Be  Monarchia  a  value,  as  a  con-  Be  Man- 

troversial  treatise,  far  above  that  of  other  works  in 

many  ways  more  interesting.     Dante  meets  the 

habent  ante  coronationem  quam  habent  post."  {Dialogus,  Pars 
HI.  Tr.  I.  Lib.  i.  c.  22.)  Cp.  also  the  Octo  Quaestiones  of  the 
same  writer. 


60     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


Papal  claim  to  a  universal  sovereignty  by  Divine 
Right  with  a  direct  counter-claim  on  behalf  of  the 
Empire.  He  shew^s  that  a  universal  monarchy  is 
ordained  by  God,  that  the  Roman  Empire  won  its 
position  through  God's  grant,  and  that  the  Emperor 
derives  his  authority  not  from  the  Chui'ch,  but 
immediately  from  God.  Since  all  power  is  of  God, 
if  the  Emperor's  power  be  lawful  at  all,  the  only 
question  is  whether  it  comes  from  God  directly,  or 
through  the  medium  of  the  Church.  Dante  occupies 
himself  with  a  careful  demolition  of  the  Papalist 
.  arguments,  thus  proving  indirectly  that  the  Emperor 
holds  his  crown  immediately  from  God  alone ;  he 
finally  proves  this  directly.  Even  had  Dante  written 
no  other  work  than  the  De  Monurchia,  it  would  be 
hard  to  refrain  from  admiration  of  the  mind,  which 
struck  out  with  such  force  and  lucidity  the  line  of 
argument,  which  was  to  remain  for  centuries  the  one 
eifectual  answer  to  all  claims  of  the  right  of  Papal 
^  or  clerical  interference  with  the  freedom  of  secular 
governments.  By  its  intellectual  grasp  and  breadth 
of  treatment,  the  De  Monarchia,  despite  its  scholastic 
character,  is  raised  far  above  the  great  majority  of 
controversial  treatises  on  the  same  subject. 
Marsiglio  It  is  easy  for  us  to  admire  the  political  philosophy 
Defmsor'  °^  Marsiglio^  to  hail  him  as  the  earliest  upholder  of 

1  Defensor  Pads,  i.  12,  13.  For  a  further  exposition  of 
Marsiglio's  philosophy  and  its  relation  to  modern  thought  see 
Poole,  Illustrations  of  the  History  of  Mediaeval  Thought,  chap.  9, 
The  ojiposition  to  the  temporal  claims  of  the  Papacy :  also 
Wycliffe  and  Movements  of  Reform,  28 — 42.  On  his  teaching  of 
religious  toleration,  see  Creightou,  Persecution  and  Tolerance, 
94—97. 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  61 


religious  toleration  Jiiul  to  recognise  his  aeutencss  in 
striking  out  the  notion  of  representative  democracy. 
Yet  it  is  impossible  not  to  feel  that  this  very  fact, 
the  modern  character  of  the  Defensor  Pads,  which 
renders  its  intei'est  so  great,  must  have  detracted 
from  its  controversial  value.  As  a  counterblast  to 
the  Papal  claims,  it  is  far  less  effective  than  Dante's 
short  work,  and  lacks  the  ring  of  enthusiasm  which 
vibrates  through  every  page  of  the  De  Monarchia. 

Moreover,  both  Marsiglio  of  Padua  and  William  UtUi- 
of  Ockham  are  largely,  though  not  exclusively,  con-  ^gummu  'nf 
cerned  with  utilitarian  arguments,  and  utilitarian  Marsiglio 

,      .  ,      ,  .  and 

arguments  must  ever  appear  beside  the  pomt  to  an  ockham. 
opponent  arguing  on  behalf  of  an  authority  which 
he  believes  to  be  Divine.  Again,  both  these  authors 
allow  to  subjects  some  right  of  resisting  the  sove- 
reign'. Such  an  admission  made  immensely  in 
favour  of  the  Papacy.  For  if  resistance  or  coercion 
of  the  prince  be  justified  at  all,  clearly  it  must  be  so 
in  defence  of  the  Divine  Law,  and  who  is  to  inter- 
pret the  Divine  Law  save  the  vicar  of  Christ  ? 
Further,  the  notion  of  Marsiglio  that  the  true 
legislative  authority  is  the  people  may  have  the 
merit  of  anticipating  modern  ideas";  but  it  weakened 
his  position  as  a  controversialist.  For  it  detracted 
from  the  dignity  and  authority  of  the  Emperor,  the 

1  Defensor  Pads,  i.  c.  18.  Ockham  argues  that  monarchy  is 
the  best  form  of  government,  because  it  is  easier  to  restrain  a 
single  head  of  the  State.  "Facilius  sit  populo  emendare  unum 
rectorem  (si  taliter  exorbitaverit),  ut  sit  puniendus  vel  etiam 
amovendus,  quam  phires. "  (Dialogus,  Pars  iii.  Tr.  ii.  Lib.  i. 
c.  13.)  2  Defensor  Pads,  i.  12,  13. 


62     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


only  power  whom  it  was  possible  to  regard  as  upon 
a  level  with  the  Pope.  If,  as  Marsiglio  claimed,  the 
Emperor  was  to  have  coercive  authority  over  the  Pope, 
y  he  needed  every  possible  accession  of  dignity  and 
prerogative.  It  was  absurd  to  lay  claim  to  this 
position,  for  one  who  is  not  conceived  as  truly  sove- 
reign, but  is  merely  an  official  executing  the  will  of 
the  true  sovereign,  the  people.  So  exalted  a  privilege 
as  that  of  judging  the  vicar  of  God,  asserted  on  behalf 
of  a  merely  representative  Emperor,  must  have  ap- 
peared supremely  ridiculous  in  the  eyes  of  men,  for 
whom  Canossa  was  the  terminus  a  quo  of  Papal 
assumption,  while  their  theory  of  ecclesiastical 
dominion  exceeded  the  wildest  dreams  of  Gregory 
VII.  or  Innocent  III. 
William  of      Both  William  of  Ockham  and  Marsiglio  of  Padua 

Ockham.  ,        i     t-i  >  ■     f  i  n 

assert,  that  the  Emperor  s  power  is  ri-om  God.  But 
both  of  them  regard  the  constitution  of  the  Empire 
and  even  its  existence  as  of  human  institution^;  if 
in  the  future  it  should  transgress  the  principle  of 
utility,  it  may  be  abolished.  For  both  of  them  it 
arises  by  human,  not  Divine  ordinance.  Yet  Marsiglio 
regards  the  Emperor  as  God's  vicar  in  a  far  fuller 
and  truer  sense  than  is  the  Pope.  With  the  rights 
of  the  Electors  still  effectively  exercised,  it  was 
plainly  impossible  to  assert  any  such  claim  of  im- 
mediate investiture  by  God,  as  might  be  claimed 
for  hereditary  monarchs.    Although,  however,  Mar- 

^  Defensor  Pads,  i.  18.  Dialogus,  Pars  iii.  Tr.  ii.  L.  i.  cc.  8, 
29—31.  Marsiglio  expressly  disclaims  any  inquiry  into  the  Mosaic 
polity,  which  was  ordained  directly  by  God ;  he  is  concerned  only 
with  principalities  set  up  by  human  law.    (i.  9.) 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  63 


siglio'  and  William  of  Ockham  are  aware  that  some 
Divine  authority  must  be  asserted  on  behalf  of  the 
Imperial  power,  they  are  fixr  too  much  governed  by 
the  notion  of  utility  to  make  this  the  kernel  of  their 
work.  Ockham  indeed,  in  a  passage  that  sounds  to 
modern  ears  like  an  echo  of  Hobbes,  places  the 
origination  of  the  Empire  in  the  peopled  The 
account,  as  may  be  supposed,  is  far  less  historically 
accurate,  than  is  that  of  Dante.  The  latter  is  so 
deeply  wedded  to  the  notion  that  the  Empire  is  held 
immediately  from  God  alone,  that  he  regards  the 
electors,  not  as  themselves  choosing  the  Emperor, 
but  as  merely  announcing  God's  choice^. 

In  asserting  his  claim  to  supremacy  the  Pope  Conflict  of 
y  came  into  collision  not  merely  with  the  decaying  ^^t^^^"'^^ 
forces  of  the  Empire,  but  with  the  rising  nationalities  Prance. 
of  Europe,  which  were  growing  stronger  every  year, 
as  feudalism  gave  way  before  the  central  power. 
Perhaps  the  most  dramatic  achievement  of  the 
middle  ages,  if  the  journey  of  Henry  IV.  to  Canossa 
be  excepted,  was  the  repudiation  by  Philip  the  Fair 
of  the  claim  of  Boniface  VIII.  to  a  position  of  com- 
plete supremacy  over  all  earthly  potentates.    In  the 
Bull  Unam  Sanctum'^  Boniface  VIII.  had  carried 
Papal  assumption  to  its  highest  point ;  and  the 
ruin,  that  in  consequence  befell  him,  forms  the 

'  Defensor  Pads,  ii.  30.  Marsiglio  is  at  pains  to  expound  the 
true  meaning  of  Rom.  xiii.,  and  to  declare  in  strong  terms  the  sin 
of  resisting  the  ordinance  of  God.    (Ibid.  ii.  25.) 

^  Dialogus,  Pars  iii.  Tr.  ii.  L.  i.  c.  8. 

3  De  Monarchia,  iii.  16. 
Supra,  p.  49. 


64     THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY 


starting-point  of  all  later  French  argument  against 
the  political  claims  of  the  Papacy. 
Theory  of       From  this  time  forth  the  freedom  of  France  from 
fi/^iiTni    ^^V^^  interference  is  the  despairing  admiration  of 
France.     Imperialist  authors^    It  is  not  then  a  matter  for 
surprise,  that  writers  in  France  begin  to  develope  the 
same  notions  of  the  Divine  Right  of  secular  govern- 
Raoul  of    ments,  as  are  to  be  found  in  the  Empire.   One  author 
1370."^*'    "1  ^^^^  fourteenth  century  asserts  with  emphasis, 
that  the  French  king  holds  his  kingdom  immediately 
from  God  alone^    Another  ai-gues,  that,  all  priesthood 
before  Christ  being  merely  typical,  kingship  is  the 
John  of     older  and  therefore  the  superior  of  the  two^  He 
\S05'       declares,  that  the  Papal  authority  cannot  come  im- 
mediately from  God,  for  in  that  case  the  prince  would 
be  the  servant  of  the  Pope,  as  he  is  of  Christ,  and  this 
would  be  to  contradict  the  xiiith  of  Romans,  where  the 
king  is  spoken  of  as  the  vicar  of  God,  not  the  Pope*; 
he  goes  on  to  argue  in  the  usual  manner  from  the 
words,  "  Touch  not  mine  anointed  "  and  other  texts^ 
Summary.       Thus  it  appears  that  from  the  beginning  of  the 
middle  ages  politics  were  conceived  as  essentially  a 
branch  of  theology ;  that  the  Popes  were  gradually 
driven  by  the  exigencies  of  their  position  to  claim 
for  themselves  a  position  of  perfect  sovereignty, 

'  Ockham  repeattdly  alleges  the  case  of  the  King  of  France, 
who  is  admittedly  free  from  Papal  interference,  as  an  argument  on 
behalf  of  the  Emperor. 

-  "II  tient  et  possede  son  Eoyaume  de  Dieu  tant  seulemen 
sans  aucun  moyen  en  tele  maniere,  que  il  ne  se  tient  de  quelque 
homme,  ne  qu'il  ne  le  tient  du  Vicaire  de  Jhesu  Christ,  ne  en  tant 
come  homme,  ne  en  tant  com  sou  Vicaire."    (Goldast,  i.  49.) 
De  Potentate  Regia  et  Papalia,  cc.  4,  5. 

*  Ibid.  c.  11.  »  Ibid.  c.  14. 


THE  HOLY  ROMAN  EMPIRE  AND  THE  PAPACY  65' 


sovereignty  by  Divine  Right,  disobedience  to  which 
is  a  mortal  sin ;  that,  as  against  this  doctrine,  the 
supporters  of  the  Emperor  formulated  a  theory  of 
sovereignty  based  upon  the  ground  of  the  necessity 
of  unity  in  the  state ;  that  they  met  the  Pope's 
pretensions  to  supremacy  as  God's  vicar  by  asserting, 
all  of  them  in  some  measure,  Dante  most  clearly 
and  completely,  that  the  Emperor's  authority  exists 
by  Divine  Right  and  comes  by  grace  of  God,  not  of 
the  Pope ;  that  they  applied  to  him  the  scriptural 
injunctions  to  obedience,  which  Boniface  VIII. 
made  bold  to  wrest  into  a  command  of  unlimited 
obedience  to  the  Papacy ;  and,  lastly,  that  this  or  a 
similar  position  was  taken  up  by  writers  on  behalf  of 
the  French  king.  The  necessity  of  unity  as  the 
foundation  of  sovereignty,  and  the  Divine  Right  of 
secular  governments  to  be  free  from  Papal  inter- 
ference are  the  root  ideas  of  Imperialist  writers. 
The  Divine  Right  of  the  Emperor  is  asserted  not 
for  its  own  sake,  but  against  a  similar  claim  to 
Divine  Right  put  forward  by  the  Pope.  Both  sides 
recognise  that  power  is  of  God,  both  are  aware  that 
there  must  be  in  the  state  some  supreme  authority 
above  the  law.  But  in  one  view  the  Divine  source 
of  all  authority  is  held  to  carry  with  it  the  supre- 
macy of  the  spiritual  power.  These  pretensions 
could  only  be  met  by  the  assertion,  that  secular 
government  was  not  merely  allowed  but  was  actually 
ordained  by  God,  and  that  the  secular  prince  held 
immediately  of  Him  with  no  intervening  authority ; 
or  in  the  words  of  John  of  Jandun,  Fotestas  im- 
perialis  est  immediate  a  Deo,  non  a  Papa. 

V.  5 


CHAPTER  IV 


WYCLIFFE  AND  KING  RICHARD  II. 

English  In  the  middle  ages  thought  and  learning  were 

'freedom^  international,  and  it  would  be  strange,  if  the  con- 
frovi  troversies  which  were  seething  on  the  Continent 
control.  during  the  earlier  part  of  the  fourteenth  century 
found  no  counterpart  in  England.  Moreover  William 
of  Ockham  was  an  Englishman  and  an  Oxonian. 
England  had  claimed  for  long  to  be  an  Empire ; 
freedom  from  Papal  interference  was  more  or  less  an 
aspiration  of  English  statesmen  from  the  times  of 
the  Conqueror  and  Henry  IT.  Even  at  the  period  of 
completest  subjection  to  the  Papacy,  the  Barons  could 
meet  the  attempt  to  assimilate  the  English  law  of 
inheritance  to  the  rules  of  the  Canon  law  with  the 
emphatic  negative  "nolumus  leges  Angliae  mutari^." 
From  the  time  of  Edward  I.,  who  outlawed  the  clergy 
rather  than  submit  to  the  bull  Clericis  laicos,  there 
had  been  passed  a  series  of  statutes  in  restraint  of 
Papal  claims.  All  this  might  well  induce  a  writer 
with  an  anticlerical  bias  or  a  monarch  with  high 
ideas  of  his  own  dignity,  to  claim  complete  '  freedom,' 

1  Statute  of  Mertoii,  c.  9. 


WYCLIFFE  AND  KING  RICHARD  II 


67 


i.e.  sovereignty  for  the  English  Crown,  and  to 
claim  it  as  coining  by  Divine  Right.  This  view 
finds  expression  in  the  writings  of  Wycliffe,  and  is 
also,  so  far  as  we  can  gather,  the  basis  of  the  definite 
theory  of  kingship  held  by  King  Richard  II. 

I. 

The  De  Officio  Regis  was  written  by  Wycliffe  WycUffe's 
rather  with  the  object  of  asserting  the  duty  of  the  jiegi^f'^''° 
sovereign  to  '  assist '  the  Church  by  disendowing  the 
clergy  of  their  temporalities'  than  with  any  direct 
purpose  of  exalting  regal  as  against  Papal  authority. 
Yet  the  writer  bases  his  practical  exhortations  upon  a 
doctrine  very  similar  to  that  proclaimed  in  the  Empire 
and  France'^.    The  king  is  God's  vicar  in  things  lUyal 
temporal,  as  is  the  priest  in  things  spiritual.    But  ^superior  to 
the  dignity  of  the  king  is  superior  to  that  of  the  sacerdotal. 
priest,  for  the  king  reflects  the  godhead  of  Christ, 
the  priest  only  His  manhoods    Thus  the  spiritual 

'  Be  Officio  Regis,  216.  The  references  are  to  the  pages  in  the 
^Vycliffe  Society's  Edition. 

^  Ibid.  73.  "Non  enim  est  jus  humanum  nisi  de  quanto 
fundatum  fuerit  in  lege  Dei  diviua."  This  is  the  fundamental 
basis  on  which  all  anti-papal  writers  ground  their  theory  of 
Divine  Right.  There  is  no  human  right  except  by  God's  law. 
But  there  are  real  human  rights.  Therefore  divine  authority  must 
be  asserted  for  them.  Starting  from  the  same  major  premiss  the 
Pope  drew  the  conclusion  that  all  human  rights  centred  in  him ; 
and  thereby  would  have  ultimately  dissolved  them.  Those  who  felt 
the  importance  of  justifying  secular  governments,  were  forced  to 
argue  that  they  have  true  rights  by  Divine  law  independent  of 
the  Papal  grant. 

^  Ibid.  12 — 14.  "  Ex  quibus  videtur,  quod  oportet  vicarium 
Cristi  sub  racione  qua  Christus  per  vicarium  Cristi  sub  racione 
qua  deus  capitaliter  regular!." 

5—2 


68 


WYCLIFFE  AND  KING  RICHARD  II 


power  is  inferior  to  the  temporal  in  earthly  dignity 
and  authority,  although  in  true  dignity  the  priest 
excels  the  king.  The  famous  decretal  of  Innocent 
III.  is  explained  away,  and  a  theory  extracted  from 
it  of  the  complete  sovereignty  of  the  temporal  power'. 
The  author  admits  that  of  the  two  jurisdictions,  the 
secular  and  the  ecclesiastical,  one  must  control  the 
other.  But  he  argues  that  the  more  perfect  state 
has  not  always  the  higher  authority;  Christ's  clean- 
sing of  the  temple  is  an  imperial.  His  submitting  to 
death  a  sacerdotal  act ;  hence  royal  authority  is  the 
higher'l  There  must  be  one  supreme  head  in  a  state, 
else  there  will  be  confusion ;  the  temporal  power 
is  this  head,  and  it  is  not  enough  to  have  the  king 
supreme  in  temporals,  he  must  be  supreme  in  all 
causes^    Wycliffe  is  not  certain,  which  of  the  two 

'  Supra,  j>.  ■is.  Be  Officio  Regis/di — 36.  The  argument  is  less 
sophistical  than  might  appear.  For  Innocent's  letter  was  merely 
about  a  question  of  precedence,  and  might  be  held  to  imply  no 
more,  than  would  a  claim  to  give  the  toast  "Church  and  State." 
Compare  Cardinal  Vaughan's  explanation  of  his  giving  the  toast 
"The  Pope  and  the  Queen"  at  the  Mansion  House  in  1893. 

^  Ibid.  137.  "Unde  Cristus  quedam  fecit  ut  Imperator,  ut 
ementes  et  vendentes  in  templo  flagellando  ejecit.  i  q.  iii  Ex 
Mullis,  quedam  ut  sacerdos  cum  se  ipsum  in  cruce  obtulit.  Cum 
igitur  prior  potestas  habet  racionem  ageutis  eciam  in  sacerdotes, 
secunda  vero  potestas  habet  racionem  pacientis  eciam  ab  eisdem 
sacerdotibus,  videtur  quod  ex  hoc  natural!  principio  'agens  est  pre- 
stancius  passo,'  potestas  regalis  sit  prestancior  potestate  sacer- 
dotali." 

■'  Ibid.  138,  9.  "  Item  vel  oportet  illas  potestates  ex  equo  haberi 
vel  unam  subordinari  alteri.  Si  enim  neutra  subordinaretur 
alteri  secundum  leges  humanas  vergeret  ad  confusionem  ecclesie." 
We  note  here  as  elsewhere  in  Wycliffe  that  the  term  ecclesia  is 
used  indifferently  of  commonwealth  or  church;  there  is  no 
thought  of  two  societies. 


WYCLIFFE  AND  KING  RICHARD  II 


69 


powers  is  truly  greater,  yet  the  Pope  cannot  be  above 
the  Emperor  in  the  sight  either  of  God  or  man  ;  for  he 
is  his  minister'.  Besides  (according  to  S.  Augustine) 
Adam  was  the  first  king,  and  Cain  the  first  priest^. 
Priests  should  not  refuse  to  be  called  the  Icing's 
priests'.  The  common  arguments  and  illustrations 
are  employed.  The  Pope  was  the  liegeman  of  the 
Emperor  before  the  donation  of  Constantine,  and 
he  can  never  have  ceased  to  be  so  since^  Emperors 
have  deposed  Popes*.  To  understand  Romans  iii.  or 
1  Peter  ii.  of  any  but  the  secular  power  is  sophistry". 

Wycliffe  will  not  allow  that  the  king  is  subject  The  King 
to  positive  law.    He  should  obey  his  own  laws  but  ^aw.  " 
his  obedience  is  voluntary,  not  by  compulsion.  For 
the  king  is  solutus  legibas ;  and  when  law  is  spoken 
of  as  governing  him  it  is  moral  or  Divine  and,  not 
positive  law  that  is  intended'. 

For  him  as  for  Ockham  the  necessity  of  imity  in 
the  state  is  the  main  proof  of  the  excellence  of 
monarchy*. 

^  Be  Officio  Regis,  143.  "Unum  audenter  assero,  quod  nec 
clamor  cleri  nostri  nec  sciiptuia  faciunt  quod  papa  iste  sit  majus 
cesare,  vel  quo  ad  seculum  vel  quo  ad  deum.  Nam  ministiare 
Bacramenta  non  est  opus  auctoritatis  sed  vicarie  servitutis,  sed 
conducere  et  precipere  taliter  ministrare.  Quod  autem  papa  sit 
sic  magnus  reputative  quo  ad  mundum  hoc  habet  a  cesare." 

2  Ibid.  144.  3  197. 

*  Ibid.  202.  =  Hid.  128.  «  Ibid.  67. 

'  Ibid.  93  sqq.  After  defining  the  law  of  reason  or  nature, 
he  goes  on :  "  Lex  contracta  per  civilitatem  connotat  supra 
talem  veritatem  ordinaeionem  et  promulgaciouem  humanam  ad 
civile  dominium  regulandum,  et  sic  est  rex  principalis  couditor 
legis  sue." 

8  jbid.  246. 


70 


WYCLIFFE  AND  KING  RICHARD  II 


Similar  Here  is  a  theory  of  sovereignty,  vested  in  the 

theory  to    ,  .       ,  •       -n-  i  i  ■  i  •  i 

that  of  Im-  King  by  Divine  mght  and  in  no  way  subject  to  the 
peruihsts.  Pope.  It  can  hardly  be  supposed,  that  so  great  a 
scholar  as  Wyclitfe  wrote  his  treatise  in  ignorance 
of  the  works  of  Ockham.  Although  its  method  is 
not  quite  the  same,  and  the  whole  book  is  inferior 
in  grasp  and  insight  to  that  of  the  earlier  author, 
yet  the  conclusions  are  the  same,  and  it  cannot 
be  assuming  too  much  to  suppose,  that  the  Im- 
perialist theory  influenced  English  thought  in  this 
way. 

Incon-  It  need  scarcely  be  mentioned,  that  with  Wy- 

notiom  °  cliffe's  theory  of  dominion  founded  in  grace,  a  bad 

"I*"".  king  has  no  real  dominion^  Yet  in  Wycliffe's 
obedience.        °  . 

system  this  would  be  no  bar  to  a  doctrine  of  un- 
limited obedience  I  Throughout  the  greater  portion 
of  his  work  he  appears  to  uphold  a  theory  of  this  sort, 
arguing  in  favour  of  passive  obedience  and  quoting 
with  approval  the  examples  of  the  Saviour  and  the 
primitive  Christians ^  Yet  in  other  places  he  con- 
tradicts this,  first  declaring  that  it  is  possible  to 
obey  by  resisting^  (by  which  he  might  mean  no 
more  than  passive  obedience),  but  going  on  to  in- 
culcate the  duty  of  rebellion  and  even  tyrannicide  as 
possible  modes  of  obedience^    It  is  impossible  to 

'  De  Officio  Regis,  17.  Tyrants  have  power  but  not  dominion. 
"Realiter  habent  potestatem  et  dignitatem  consequentem  secun- 
dum quam  regunt...Sed  ilia  potestas  non  est  dominium." 

2  For  expositions  of  Wycliffe's  theory  of  Lordship,  see  Poole, 
Illustrations  of  the  History  of  Mediaval  Thought,  Ch.  x. ;  Wycliffe, 
Movements  of  Reform,  Chap.  vi. 

2  De  Officio  Regis,  6  sqq. 

4  Ibid.  82.  Ibid.  201. 


WYCLIFFE  AND  KING  RICHARD  II  71 


<acquit  hiin  of  inconsistency  in  this  respect.  Indeed, 
this  same  inconsistency  is  found  in  Marsiglio  and 
Ockham.  Both  of  them  emphatically  proclaim  the 
authority  of  the  Scriptural  prohibitions  of  resistance, 
yet  in  certain  cases  they  seem  to  approve  it. 

It  is  only  natural  that  this  should  be  the  case.  Catises 

this. 

The  writers  of  the  fourteenth  century  were  en- 
gaged in  elaborating  an  anti-papal  theory.  In  a 
doctrine,  which  is  only  in  the  making,  it  is  vain  to 
look  for  the  same  harmony  and  consistency  in  all  its 
parts,  as  is  to  be  found,  for  instance,  in  the  developed 
theory  of  the  Divine  Right  of  Kings.  Yet  there  is 
no  doubt,  that  this  admission  of  a  right  of  resistance, 
however  qualified,  gives  away  the  whole  case  against 
the  Papacy.  Once  resistance  under  any  circum- 
stances be  admitted,  heresy  is  seen  to  be  a  plain 
case  for  it,  and  the  Pope  on  any  view  is  the  judge 
of  that.  Wycliffe  condemns  all  who  resist  a  tyrant, 
save  on  behalf  of  God's  law ;  he  will  have  nothing  to 
do  with  utilitarian  obedience^  Now  this  is  to  pro- 
claim a  doctrine  of  complete  subjection,  so  far  as 
civil  matters  are  concerned,  while  by  implication  it 

'  De  Officio  Regis,  8.  "  '  Vel  illata  est  iniuria  quo  ad  causam 
propriam  vel  pure  quo  ad  causam  dei.  In  piimo  casu  post  exhorta- 
cionem  evangelicam  paciencia  est  optima  medicina.  Si  pure  in  causa 
dei  cristianus  debet,  post  correpcionem  evangelicam,  preposito  suo 
usque  ad  mortem,  si  oportet,  confidenter  et  obedienter  resistere. 
Et  sic  utrobique  innitendum  est  paciencie,  comittendo  humiliter 
deo  judicium  iniuriam  vindicandi.'  Et  qui  excedit  banc  regulam 
resistit  dampnabiliter  potestati  et  dei  ordinacioni,  ut  faciunt 
hii  qui  rebellant  precipue,  id  est  affeccione  comodi  temporalis 
potestatis."  Mtitatis  mutandis,  Wyclifie's  view  is  that  of  Bel- 
larmine. 


72 


WYCLIFFE  AND  KING  RICHARD  II 


gi'ants  to  the  Pope,  as  the  interpreter  of  the  Divine 
Law,  the  right  of  interference  in  all  states.  WyclifFe 
takes  away  the  independence  of  the  prince  without 
establishing  the  liberty  of  the  subject;  and  his 
theorj^,  if  practically  carried  out,  would  have  been 
used  to  support  both  the  tyranny  of  an  orthodox' 
king,  and  the  interference  of  a  meddlesome  Pope. 
It  would  have  had  all  the  disadvantages  of  the  theory 
of  the  Divine  Right  of  Kings  combined  with  those  of 
clerical  supremacy,  and  would  have  been  without  the 
advantages  of  either  doctrine.  But  this  was  not 
foreseen  by  Wycliffe,  and  the  main  drift  of  his  work 
is  to  inculcate  the  universal  authority  of  the  Crown 
and  the  religious  duty  of  submission  to  it  on  the 
part  of  all  classes.  Until  religious  toleration  should 
become  an  accepted  maxim,  or  the  claim  of  Pope  or 
clergy  to  authority  in  spiritual  things  be  disallowed, 
there  was  no  completely  effective  method  of  meeting 
the  Papal  claim  to  political  supremacy  save  by  a 
theory  of  absolute  non-resistance  and  Divine  Right. 
It  should,  however,  be  said  that  both  Wycliffe  and 
Marsiglio  are  anti-clericalist  and  Erastian  even  as 
regards  religion,  and  would  not  have  admitted  the 
final  authority  of  the  Pope  in  questions  of  faith  and 
morals. 

>  'Orthodox'  here  must  be  taken  to  mean  orthodox  in  the 
view  of  the  recognized  spiritual  authority,  whether  Pope  or  "poor 
priest."  The  theory  really  subjects  the  temporal  power  to  the 
spiritual,  and  would  justify  all  ecclesiastical  theories  of  polities. 


WYCLIKFE  AND  KING  RICHARD  II 


73 


II. 

Whether  the  speculations  of  Wycliffe  exercised  Possible 
any  influence  over  Richard  II.  may  be  doubted. 
Nor  is  there  evidence  that  his  theory  of  kingship 
was  in  any  way  derived  from  the  writings  of  the 
Imperialist  advocates.  Yet  at  least  it  is  certain 
that  men  could  not  remain  unaffected  by  the  great 
controversy  between  John  XXII.  and  Lewis  of 
Bavaria,  and  that  the  ideas  expressed  by  writers  on 
behalf  of  the  Emperor  would  be  peculiarly  welcome 
to  Englishmen.  Nor  can  it  be  denied  that  the 
assertion  about  this  time  of  the  independence  of 
England  from  Papal  interference  might  easily  move 
a  man  of  Richard's  narrowly  logical  type  of  mind  to 
claim  for  himself  the  position  of  an  absolute  monarch 
by  Divine  Right.  He  was  the  last  person  to  ignore 
the  significance  of  the  preamble  to  the  great  Statute 
of  Praemunire,  which  asserts,  that  "  this  crown  of 
England  hath  been  so  free  at  all  times  that  it  hath 
been  in  no  earthly  subjection  in  all  things  touching 
the  regality  of  the  said  crown^"  If  this  were  really  His 
so,  he  would  take  care  to  maintain  intact  the  "  right 
and  liberty  of  the  crown,"  and  would  see  to  it,  that  papal- 
no  Parliamentary  or  baronial  combination  should 
drive  him  to  abate  it  one  jot  or  tittle.  Although  we 
find  him  attacked  for  lowering  his  dignity  before  the 
Pope-,  this  is  undoubtedly  a  case  of  collusion,  in  which 
'  16  Eic.  II.  c.  5,  Statutes  of  the  Realm. 

^  Articles  of  Deposition,  c.  10.  Of.  also  Walsingham,  ii.  203 ; 
the  king  and  John  of  Gaunt  are  regarded  as  more  inclined  than 
Parliament  to  yield  to  the  Pope  in  regard  to  the  repeal  of  the 
Statute  of  Provisors. 


74 


WYCLIFFE  AND  KTNG  RICHARD  11 


he  sought  to  obtain  the  Pope's  authority  for  the  great 
constitutional  changes  of  the  Parliament  of  Shrews- 
bury. When  it  is  his  interest,  he  is  willing  enough 
that  Archbishop  Arundel  should  be  translated  to 
S.  Andrew's,  by  Papal  authority ;  yet  he  complains  to 
the  clergy  of  the  abominable  custom  of  Papal  trans- 
lations, which  in  the  case  of  Archbishop  Nevill  had 
been  employed  as  apolitical  weapon  against  himself; 
and  he  offers  his  support,  if  they  will  make  a  stand 
in  the  matter  against  the  see  of  Rome'.  He  cannot 
understand  why  the  Pope  should  demand  the  repeal 
of  the  "  statutes  "  of  Praemunire  and  Quare  Impedit, 
although  he  is  glad  to  learn  that  his  Holiness  has  no 
desire  to  diminish  the  right  and  liberty  of  the  Crown 
of  England  I  When  he  is  on  the  side  of  the  Pope, 
it  is  for  reasons  of  immediate  convenience ;  at  heart 
he  is  as  anti-papal  as  Henry  VIII.^  Indeed,  he  was 
accused  of  interfering  with  the  ecclesiastical  courts"*. 
Richard's  But  whether  or  no  Richard  was  influenced  by 
absohitf  writings  of  Wycliffe  and  the  Imperialist  theory, 
monarchy,  he  certainly  believed  in  the  sacredness  of  his  office 
and  in  the  '  liberty '  of  his  Crown  more  strongly  than 
any  of  his  predecessors,  and  devoted  all  his  energies 
'  Walsingham,  ii.  228. 

'-  John  Malverne  in  Appendix  to  Higden,  ix.  256. 
^  Walsingham,  ii.  108;  Higden,  ix.  26. 
Articles  of  Beposition,  c.  29.  In  regard  to  a  dispute  as  to  an 
election  of  the  Abbot  of  S.  Edmondsbury  we  are  told,  that  "  the  seide 
kynge  sende  embassiatours  to  the  Pope  commawndyng  them  to  saye 
to  the  pope,  that  his  wylle  sohoeld  not  be  flexible  in  this  matter." 
Appendix  iv.  to  Higden's  Poli/chronicon,  viii.  452  ;  Walsingham, 
II.  68.  Richard  afterwards  yielded,  much  to  the  disgust  of  Wal- 
singham. "  Sicut  Ecclesiae  Anglicanae  detrimentum,  ita  Papae  et 
curialibus  magnam  peperit  materiam  insolescendi."    (Ibid.  97.) 


WYCLIFFE  AND  KING  RICHAUD  II 


75 


to  the  establishment  of  a  despotism.  He  is  ever 
nervously  '  guarding '  and  '  saving '  his  Crown  and 
dignity.  In  the  shrill  tones  of  the  doctrinaire  poli- 
tician, he  repeatedly  declares  that  nothing  he  does 
shall  prejudice  his  prerogative.  On  the  nobles 
threatening  him  with  deposition  he  gives  way  'saving 
the  rights  of  the  Crown'.'  The  commission  of  1386 
he  sincerely  regards  as  void,  as  being  against  the 
liberty  of  the  Crown'^  He  is  the  sole  source  of  law, 
not  bound  by  custom' ;  king  by  God's  grace  and  right 
of  births  he  will  not  endure  that  his  liberty  be 
touched. 

Nor  did  Richard  confine  himself  to  words.    He  His 
tampered  with  the  Rolls  of  Parliament^;  he  altered''™'^'" 
and  nullified  statutes  agreed  upon  by  both  Houses 
of  Parliament".    He  exercised  a  dispensing  power 
that  was  liberal  beyond  the  custom  of  such  a  king 

'  John  Malverne,  Appendix  to  Higden's  Polychrmiicon,  ix.  115. 

2  Richard  appears  to  have  felt  that  in  assenting  to  the  demands 
of  this  commission  he  was  virtually  resigning  the  crown.  Walsing- 
ham,  II.  152.  Cf.  also  Rot.  Pari.  iii.  224,  "  Le  roi  en  plain  Parle- 
ment,  devant  le  fyn  d'icell,  fist  overte  Protestation  par  sa  bouche 
demesne,  Qe  pur  riens  qu'estoit  fait  en  le  dit  Parlement  il  ne  vorroit 
que  prejudice  avendroit  a  lui  ne  a  sa  corona  ;  einz  qua  sa  Prerogatif 
et  les  Libertees  da  sa  dite  Corona  feussant  saavez  at  gardez." 

'  "Rex. ..dixit  expresse  vultu  austere  at  protervo,  quod  lagas 
suae  erant  in  ora  suo,  et  aliquotiens  in  pectore  suo,  et  quod  ipse 
solus  possit  mutare  et  condere  lagas  regni  sui."  Articles  of  Deposi- 
tion, c.  16.  *  Rot.  Pari.  iii.  339. 

'  Walsingham,  ii.  227  ;  Articles  of  Deposition,  c.  8. 

"  Walsingham,  ii.  48.  "Sed  quid  juvant  Statuta  Parliamen- 
torum,  cum  penitus  axpost  nullum  sortiantur  affectum?  Rex 
nempe  cum  Private  Consilio  cuncta  vel  mutare  vel  dalera  solebat, 
quae  in  Parliamentis  ante  habitis  tota  regni  non  solum  communi- 
tas,  sed  et  ipsa  nobilitas,  statuabat."    Articles  of  Deposition,  c.  17. 


76 


WYCLIFFE  AND  KING  RICHARD  II 


as  Edward  III. ;  in  various  ways  he  shewed  that  he 
regarded  neither  law  nor  custom  as  binding  his 
action.    But  it  is  in  the  last  years  of  his  reign,  that 
I'arlia-     his  views  found  their  fullest  expression  and  came 
lag?-^     near  to  being  embodied  in  the  constitution.  In 
the  famous  Parliament  of  1397-8,  he  obtained  the 
repeal  of  the  pardon  of  the  Lords  Appellant ;  he  pro- 
cured the  ratification  of  the  opinions  of  the  judges 
at  Nottingham,  which  condemned  the  Commission 
of  Reform  of  1386,  declared  the  proposers  of  it  guilty 
of  high  treason,  and  gave  the  king  power  to  arrange 
the  order  of  business  in  Parliament,  a  rule  that  would 
have  entirely  prevented  the  growth  of  the  maxim 
Redress  of  grievances  before  supply ;  finally  he  per- 
suaded the  Parliament  to  delegate  its  authority  to  a 
perpetual  committee  of  eighteen'. 
His  object       There  can  be  no  question,  that  by  these  measures 
to  create  a  Ri^j^ard  was  attempting  to  create  a  written  consti- 

permanent  r  a 

despotism,  tution,  a  lex  regia,  which  should  save  the  rights  of 
the  English  Crown  for  ever.  It  is  made  high  treason 
to  attempt  the  repeal  of  the  statutes ;  all  solemnly 
swear  to  keep  them.  For  the  future,  tenants  of  fiefs, 
whether  barons  or  bishops,  are  to  swear  to  maintain 
the  acts,  before  obtaining  livery  of  seising  The 
king  writes  to  the  Pope  in  order  to  obtain  his  con- 
firmation of  the  measures,  an  unheard-of  thing,  made 
one  of  the  grounds  of  his  deposition  I    Finally,  in  his 

1  21  Eic.  II.  cc.  1—20.    Statutes  of  Realm,  ii.  94—110. 

'•^  Eot.  Pari.  III.  352  sqq.  Even  this  oath  is  taken  "sauvant 
au  Eoi  sa  Regalie  et  Libert^  at  le  droit  de  sa  corone." 

3  The  articles  of  deposition  are  given  in  Knyghton  (Twysden, 
Decern  Scriptores,  2746—2750) ;  Hot.  Pari.  iii.  417—427. 


WYCLIKFE  AND  KING  RICHARD  II 


77 


will  Richard  bequeathed  his  private  treasure  to  his 
successor,  with  the  proviso  that  he  should  ratify  and 
observe  the  statutes  of  the  Parliament  of  Shrews- 
bury. Failing  his  compliance  with  the  condition, 
the  treasure  is  left  to  others,  who  are  to  labour 
even  unto  death  to  effect  the  ratification  of  the 
statutes ^ 

The  import  of  this  is  plain.  Richard  desired  to 
found  an  absolute  monarchy,  and  to  relieve  the 
Crown  of  all  the  limitations,  with  which  custom  had 
fenced  it  about.  The  principle  which  animates  the 
king  is  clear  and  definite.  He  acts  not  from 
caprice  or  momentary  lust  of  dominion ;  but  with  a 
settled  purpose  he  asserts  the  rights  of  kingship  and 
attempts  to  render  them  secure  for  future  ages.  The 
clearest  insight  into  Richard's  theory  is  given  by  the 
sermon  preached  by  the  Bishop  of  Exeter  at  the 
opening  of  this  Parliaments 

The  text  is  Rex  unus  est  omnibus^,  and  the  'Sermon  of 

Bishop  of 

preacher  argues  that  there  must  be  one  kmg,  and  Exeter. 
one  governor ;  otherwise  no  realm  can  be  governed  ; 
in  a  word,  "mixed  monarchy"  is  anarchy.  To  this  end 
of  unity  in  the  state  three  things  are  necessary ;  the 
king  must  be  powerful,  the  laws  must  be  kept,  and 
subjects  must  be  obedient.  The  Crown  is  possessed  of 
certain  privileges,  which  may  not  be  alienated ;  any 
act  attempting  to  do  so  is  void.  Parliament  is  there- 
fore summoned  to  enquire,  whether  any  such  rights 
have  been  alienated  in  the  past,  that  remedy  may 

1  Rymer,  viii.  75,  Articles  of  Deposition,  c.  31. 

2  Rot.  Pari.  III.  347. 
^  Ezek.  xxxvii.  22. 


78 


WYCLIFFE  AND  KING  RICHARD  II 


be  taken,  non  obstante  any  ordinance  to  the  contrary. 
For  the  king  is  the  source  of  law  and  the  judges 
are  bound  to  maintain  the  rights  of  his  Crown. 
The  same  idea  comes  out  in  the  speech  of  the  Chan- 
cellor at  the  re-assembling  of  Parliament  at  Shrews- 
bury ;  the  object  of  meeting,  he  says,  is  to  see  that 
there  be  not  several  sovereigns  in  the  kingdom,  but 
one  only'.  All  this  is  on  exactly  the  same  lines  as 
the  anti-papal  arguments  of  Ockham  and  others,  to 
prove  the  omnipotence  of  the  sovereign  authority 
from  the  necessity  of  unity  in  the  state. 

It  may  be  noticed,  that  in  making  Parliament 
the  instrument  of  the  destruction  of  its  own  liberties, 
Richard  set  the  precedent,  afterwards  followed  with 
better  success  by  Henry  VIII.    The  general  pardon 
which  he  granted  to  his  subjects^  is  an  exact 
parallel  to  the  famous  pardon  of  the  whole  realm 
by  Henry  VIII.  for  its  breach  of  the  Statute  of 
Praemunire.    Richard  appears  also  to  have  been  the 
first  king,  who  saw  the  advantage  of  manipulating 
Parliament ;  he  is  accused  of  packing  the  House  with 
his  own  nominees  and  of  bribing  members ^ 
Richard's        Walsingham  tells  us  that  after  this  act  the 
^Mredness  sheriffs  throughout  the  kingdom  were  compelled  to 
of  king-     %akQ  new  and  unaccustomed  oaths,  that  they  would 

ship  and  .     ,  .  . 

of  unction,  obey  the  king's  commands  whether  signified  under 
the  Great  Seal,  the  Privy  Seal,  or  even  the  Signets 

1  Rot.  Pari.  III.  357. 

^  21  Ric.  11.  c.  20 :  the  Bishop  of  Exeter  declares  the  granting 
of  this  pardon  to  be  one  of  the  chief  grounds  of  the  summoning  of 
Parliament.  ^  Articles  of  Deposition,  c.  19. 

■*  Walsingham,  ii.  231 ;  Articles  of  Deposition,  c.  20. 


WYCLIFFE  AND  KING  RICHARD  II 


79 


That  Richard  was  standing  up  for  what  he  believed 
to  be  a  principle  seems  proved  by  his  repeatedly 
declaring  during  his  troubles,  that  his  wretched 
condition  was  an  outrage  on  all  kings,  and  would 
bring  royalty  into  dishonour*.  We  know,  that  until 
the  day  of  his  death  he  regarded  himself  as  king 
by  virtue  of  unction,  despite  his  deposition,  that 
he  regarded  this  ceremony  as  conferring  a  sacra- 
mental graced  and  that  he  directed  in  his  will,  that 
he  should  receive  a  royal  funeral.  It  seems  clear, 
then,  that  ideas,  originally  framed  into  a  system  of 
defence  against  the  Papacy,  found  expression  in  a 
doctrine  of  absolute  monarchy  held  by  a  self-willed 
English  king,  and  of  the  divine  origin  of  kingship, 
as  evidenced  by  the  custom  of  hereditary  succession 
and  by  the  indelible  character  of  unction. 

For  the  position  of  Richard  as  king  was  itself  a 

1      "Ce  sera  pour  lui  [le  roi  de  France]  grant  vitupere, 
Voire  et  pour  tous  les  royz  qui  nez  de  mere 
Sont  au  jourduy  ; 

Veu  loultrage  et  le  tresgrant  ennuy, 
La  povrete  et  le  point  ou  je  suy." 

{Histoire  du  Roy  d'Angleterre  Richard:  Arcbaeol. 
Britann.,  xx.  339.) 
There  is  much  more  in  the  same  strain.   In  speaking  of  Boling- 
broke  Richard  is  made  to  say  : 

"Tous  ceulx  seront  ses  ennemis 
Qui  aymeront  honneur,  loyaute,  pris 
Et  vasselaige." 

*  Walsingham,  ii.  240.  The  king  had  wished  to  be  a  second 
time  anointed,  with  oil  from  the  Holy  Land.  It  was  used  for 
Henry  IV. ;  Richard  speaks  of  himself  as  unworthy  tarn,  nohile 
sacravientum.  That  he  desired  the  ceremony  of  unction  to  be  re- 
peated is  nothing  against  his  regarding  it  as  a  sacrament,  conferring 
a  grace. 


80 


WYCLIFFE  AND  KING  RICHARD  II 


primn- 
geniture 


a  proof  of  strong  proot'  of  the  progress  of  the  idea  that  in- 
IdeaTof  herent  birthright  is  the  chief  title  to  the  regal 
dignity.  Like  Arthur  of  Brittany,  Richard  was  a 
boy  when  the  throne  became  vacant ;  as  in  the  case 
of  Arthur,  his  father  had  not  himself  worn  the 
Crown ;  while,  in  both  cases,  there  was  living  an 
uncle  ambitious  and  unscrupulous,  and  one  of  the 
most  powerful  men  in  the  country.  Yet  while  in  the 
twelfth  century,  the  uncle  succeeded  and  the  prin- 
ciple of  an  elective  monarchy  was  affirmed ;  in  the 
fourteenth,  there  was  no  question  about  the  nephew's 
succession ;  the  principle  of  representative  primo- 
geniture had  triumphed. 

Lastly,  the  speech  of  the  Bishop  of  Carlisle,  which 
is  familiar  to  us  from  Shakespeare's  version \  is 
evidence  that  the  doctrines  of  unlimited  obedience 
and  of  legitimism  were  becoming  popular,  and  that 
the  new  dynasty  which  based  itself  on  the  rights  of 
the  nation  and  the  choice  of  Parliament  would  have 
to  encounter  an  opposition  grounded  upon  the  claims 
of  hereditary  right  and  upon  the  iniquity  of  rebellion^. 


Appear- 
ance of 
doctrine 
of  legiti- 
mism. 


^  King  Richard  11.  Act  iv.  Sc.  i,  11.  149.  Shakespeare, 

who  changes  the  circumstances,  took  the  speech  from  Holinshed, 
who  got  it  from  Hall.  The  latter  apparently  found  it  in  Lystoire 
de  la  traison  et  iiiort  dii  ray  Richart  dengleterre.  (English  Histori- 
cal Society's  Edition,  pp.  70,  1.)  Cf.  also  the  speech  of  the  Earl  of 
Warwick  in  1386.    (Higden,  ix.  110.) 

^  The  proclamation  of  the  French  king  against  the  usurper  is 
further  evidence  of  this.    Lystoire  de  la  traison,  Appendix  H. 


CHAPTER  V 


KINGSHIP  IN  ENGLAND  FROM  HENRY  IV. 
TO  ELIZABETH 

The  claims  of  Richard  II.  to  found  a  despotism  cmstitu- 
were  repudiated  by  the  nation.    The  Revohition  of 
1399  is  an  assertion  of  the  right  of  Englishmen  to  o/l399. 
constitutional  government.    The  articles  of  deposi- 
tion in  which  the  charges  against  Richard  are  set 
forth,  contain  or  imply  a  theory  of  constitutionalism 
as  uncompromising  as  the  absolutist  doctrine  of  the 
king.    Nor  was  this  all.    In  elevating  Henry  of 
Bolingbroke  to  the  throne  the  English  nobles  passed 
over  the  nearest  heir,  and  asserted  the  right  of 
Parliament  to  elect  the  fittest  person  from  within 
the  royal  family.   Yet  the  position  is  not  quite  clear. 
Henry  paid  homage  to  the  principle  of  legitimism 
by  his  claim  to  be  the  nearest  heir  to  Henry  III. 
The  fiction  was  transparent  enough;  no  one  believed  Henry's 
Henry's  ancestor  Edmund  Crouchback  to  have  been  ]lereditary 
older  than  his  brother  Edward  I.    Yet  the  more  '''f''* 

•  T     1  1       p  1  1  1  -1  evidence 

ridiculous  the  table  appears,  the  stronger  is  the  of  popular 
evidence  it  affords  of  the  hold  upon  the  minds  o{  sentiment. 
Englishmen  of  the  principle  of  strict  hereditary 
succession.    Men  will  not  bolster  up  a  claim  by  a 
F.  6 


82  ENGLISH  KINGSHIP  FROM 

transparent  falsehood,  save  to  satisfy  some  really 
existing  sentiment.  However,  constitutionalism 
triumphed  for  a  time,  and  the  theory  of  government 
propounded  by  an  English  lawyer^  at  the  close  of 
the  period  is  as  emphatic  in  its  repudiation  of  des- 
potism and  preference  for  'mixed  monarchy,'  as  were 
the  doctrines  of  Wycliffe  and  Richard  II.  upon  the 
other  side.  Yet  the  new  dynasty  was  a  failure ; 
strong  government  was  needed,  and  the  country 
"  perishing  for  lack  of  it "  called  the  legitimate  line 
to  its  assistance ^  It  is  as  a  reformer,  not  as  a  pre- 
tender, that  Richard  Duke  of  York  first  comes  into 
Inde-  prominence.  Yet  it  was  only  owing  to  his  position 
^hereditary  the  legitimate  heir  of  Edward  III.  that  he  gained 
r?p;i«  a      ^ijg  leadership  of  the  reforming  painty.    From  the 

XOV/CtSt  1111 

doctrine,  position  of  popular  leader  clamouring  for  good  go- 
vernment he  quickly  passed  to  that  of  the  dispos- 
sessed heir  demanding  his  rights.  It  is  now  that 
the  notion  of  indefeasible  hereditary  right  first 
appears  in  English  history^    On  no  theory  of  the 

'  Fortescue,  Dc  Laudihus  Le<jum  Angliae  (1468-70) ;  The 
Governance  of  England  (1471-6). 

Accounts  of  Fortescue's  theory  are  given  by  Mr  Plummer 
in  his  introduction  to  the  latter  and  by  Dr  Stubbs,  Constitutional 
History,  §  365. 

2  Ibid.  §  372.  Parliament  thus  sums  up  the  grievances  of  the 
nation  under  the  Lancastrian  dynasty,  "In  whose  [Henry's]  time 
not  plenty,  peace,  justice,  good  governance,  policy,  and  virtuous 
conversation,  but  unrest,  inward  war  and  trouble,  unrighteousness, 
shedding  and  effusion  of  innocent  blood,  abusion  of  the  laws,  par- 
tiality, riot,  extortion,  murder,  rape  and  vicious  living  have  been  the 
guides  and  leadei-sof  this  noble  realm  of  England."  Rot.  Pari.  v.  464, 

^  It  is  an  extension  to  the  succession  of  the  doctrine  Nullum 
tempus  occurrit  regi.  Some  of  the  arguments  employed  are 
noticeable :  The  Duke  of  York  answers  the  objection  raised 


HENRY  IV.  TO  ELIZABETH 


83 


State  can  a  rightful  heir  be  greatly  blamed  for 
heading  a  revolt  against  a  usurper.  But  after  the 
original  usurper  is  dead,  and  his  dynasty  to  all  appear- 
ance established,  the  dispossessed  line  will  not  obtain 
y  any  general  support, unless  there  be  prevalent  a  strong 
sentiment  of  legitimism,  a  widespread  belief  that,  so 
long  as  the  rightful  heir  is  to  be  found,  nothing  can 
bar  his  claim.  Thus  the  nominal  occasion  of  the  Wars 
of  the  Roses,  however  little  it  may  have  been  their 
real  cause,  is  a  proof  of  the  influence,  which  the 
principle  of  legitimism  had  gained  by  the  middle  of 
the  fifteenth  century.  Men  will  not  profess  to  take  The 
up  arms  in  support  of  a  doctrine,  that  is  not  popular  ^^iuvJ^^ 
and  widespread.   And  the  principle  triumphed.   Not  phant. 

against  his  claim,  that  allegiance  had  been  sworn  to  Henry  VI. 
with  the  assertion  that  no  oaths  are  binding  if  they  conflict  with 
the  law  of  God,  i.e.  hereditary  right.  He  claims  to  be  "right 
inheritor  of  the  said  crowns  as  it  accordeth  with  God's  law  and  all 
natural  laws."  (Rot.  Pari.  v.  377.)  In  the  first  year  of  the  reign 
of  Edward  IV.  Parliament  condemns  the  treatment  of  Eichard  II. 
"king  anointed,  crowned,  and  consecrate,"  as  "against  God's  law, 
man's  legiance,  and  oath  of  fidelity."  There  is  no  act  upon  the 
Statute  book  granting  the  crown  to  Edward,  as  in  the  case  of 
Henry  VII.  and  even  James  I.  Parliament  merely  declares  that 
he  took  to  him  the  right  on  the  death  of  his  father.  It  speaks  of 
the  Duke  of  York  claiming  the  crown  as  "using  the  benefice  of  the 
law  of  nature,  not  having  any  Lord  then  above  him  but  God." 
(Ibid.  464,  5.)  It  would  be  impossible  to  express  more  strongly  the 
notion  of  inherent  right,  as  the  one  title  to  the  crown ;  questions 
with  regard  to  the  succession  are  already  acquiring  a  mystical 
character,  and  lawyers  refuse  to  meddle  with  the  arcana  imperii. 
The  judges  on  being  asked  to  discuss  the  validity  of  the  Yorkist 
claim,  declared  that  the  "matter  was  so  high  and  touched  the 
king's  high  estate  and  regalie,  which  is  above  the  law,  and  passed 
their  learning,  wherefore  they  durst  not  enter  into  any  communica- 
tion thereof."    (Ibid.  376.) 

6—2 


84 


ENGLISH  KINGSHIP  FROM 


only  was  Edward  IV.  able  to  oust  those  who  were 
"  Kings  in  deed  and  not  in  right'  ";  but  his  opponents 
themselves  put  forward  pretensions  to  hereditary 
right.  Abandoning  the  claim  that  Henry  IV.  was  the 
nearest  heir  to  Henry  III.,  they  advanced  the  plausi- 
ble contention  that  the  Yorkist  line  was  barred  by  its 
descent  from  a  woman.  Thus  in  one  way  or  another 
the  validity  of  the  hereditary  test  was  admitted. 

Nor  are  the  breaches  of  the  principle  before  the 
reign  of  Henry  VIII.  as  important  as  might  appear. 
Richard  III.  may  have  been  a  usurper,  but  at  least 
he  claimed  to  succeed  by  the  best  right.  He  alleged 
that  Edward  V.  was  illegitimate,  and  that  the  young 
Earl  of  Warwick's  claim  was  barred  by  the  attainder 
of  the  Duke  of  Clarence.  If  this  were  so,  he  was 
the  undoubted  heir  of  Edward  IV.  Anyhow,  the 
titulus  regius  said  he  was,  and  gave  him  the  Crown 
for  that  reason^ 
Heredi-  Bosworth  field  put  an  end  for  a  time  to  the 

Succession  claims  of  strict  right,  and  the  Crown  was  won  by 
^udorT^  an  adventurer,  who  probably  had  a  better  title 
to  be  regarded  as  heir  of  Welsh  princes  than  of 
English.   Yet  even  for  the  hereditary  claim  of  Henry 

1  Statutes  of  the  Realm,  ii.  380. 

2  English  Historical  Review,  vi.  260  sqq.,  453,  and  Gairdner, 
Life  and  Reign  of  Richard  III.  Chapter  in. ;  Speed's  History, 
717 — 25.  Tlie|author  of  Majestas  Intemerata  is  well  aware  that  "  the 
first  of  Richard  III.  bastardizes  Edward  the  Fourth's  posterity  to 
flatter  a  tyrant ;  but  what  historian  since  ever  fixed  a  truth  upon 
this  act  ?  "  The  Act  professes  merely  to  resolve  the  doubts  by 
declaring  the  succession  not  granting  the  crown,  to  which  the  title 
of  Richard  III.  is  "just  and  lawful  as  grounded  upon  the  laws  of 
God  and  nature  and  also  upon  the  ancient  laws  and  customs  of 
this  said  realm." 


HENRY  IV.  TO  ELIZABETH 


85 


Tudor  something  might  be  said.  The  legitimation 
of  the  Beauforts  might  be  held  to  extend  to  the  suc- 
cession. It  could  be  pretended  that  the  titles  of  all 
other  claimants  were  barred ;  that  of  Elizabeth  of 
York  as  a  woman,  that  of  Richard  III.  as  a  usurper, 
and  that  of  Warwick  as  scion  of  an  attainted  house'. 
At  least,  by  marrying  Elizabeth  Henry  endeavoured 
to  secure  for  his  dynasty  the  hereditary  title,  which  he 
must  have  felt  flimsy  in  his  own  case^  Henry  VIII. 
reigned  as  the  unquestioned  heir  of  Edward  III. 
These  facts  shew  that,  if  the  principle  of  hereditary 
right  was  not  allowed  to  prevent  title  by  conquest 
or  choice,  it  was  at  least  felt  desirable  to  pay  to  it 
the  decent  respect  of  ingenious  falsehood.  On  the 
other  hand,  a  curious  contrast  to  the  sentiment  is 
the  statute,  which  gives  protection  to  all  supporters 
of  a  de  facto  king^,  and  even  attempts  to  prohibit 
future  Parliaments  from  attempting  its  repeal. 

The  next  reign  exhibits  the  most  startling  breach 
of  the  principle  of  hereditary  succession.  The  pecu- 
liar matrimonial  relations  of  Henry  VIII.  necessi- 
tated continual  changes  in  the  succession,  which  could 
no  longer  be  regarded  as  a  sacred  thing.  When 
Henry  was  empowered  to  choose  his  own  successor, 
absolutism  had  triumphed  at  the  expense  of  legi- 
timism*.   Certainly  a  king,  in  whose  hands  are 

1  On  the  claim  of  Henry  VII.,  see  Stubbs,  Lectures  on  Medi- 
(Bval  and  Modem  History,  392 — i. 

2  For  the  pains,  which  Henry  VII.  took  to  destroy  all  evidences 
of  the  early  marriage  of  Edward  IV.  see  English  Historical  Review, 
VI.  265. 

3  11  Henry  VII.  c.  1. 

*  28  Hen.  VUI.  c.  7,  and  35  Henry  VIII.  c.  1. 


86 


ENGLISH  KINGSHIP  FROM 


placed  the  control  of  the  succession,  is  more  com- 
pletely sovereign  in  theory,  than  even  Louis  XIV. 
whose  will  might  indeed  be  law,  but  he  would  never 
have  been  recognized  as  competent  to  alter  the 
succession.  Henry  named  his  own  children  in  the 
order  which  appeared  to  follow  most  closely  the  rule 
of  primogenitary  succession :  in  that  order  they  suc- 
ceeded. Doubtless  it  is  true  that  Mary  and  Eliza- 
beth could  not  both  of  them  be  lawful  heirs ;  one 
of  them  must  be  illegitimate ;  yet  at  least  the  suc- 
cession of  Edward  VI.  and  his  sisters  followed  the 
natural  order;  if  the  dissolution  of  the  marriage 
with  Catharine  of  Aragon  be  regarded  as  merely  a 
divorce,  it  is  even  possible  to  maintain,  that  the 
sentiment  of  hereditary  right  had  not  been  violated. 
^osttioH  o/ Yet  Elizabeth's  case,  which  was  the  most  doubt- 
ful of  the  three,  certainly  aroused  controversy.  It 
does  not  appear,  that  she  was  regarded  upon  the 
Continent  as  a  legitimate  sovereign.  From  the  outset, 
Mary  Queen  of  Scots  claimed  the  Crown  by  here- 
ditary right.  This  right  she  undoubtedly  possessed, 
if  the  divorce  of  Catharine  were  invalid.  Elizabeth's 
irritation  at  Mary's  quartering  of  the  arms  of  England, 
her  vain  attempts  to  obtain  from  Mary  the  ratifica- 
tion of  the  treaty  of  Edinburgh,  in  which  her  present 
and  future  claims  to  the  throne  were  renounced,  were 
the  inevitable  result  of  her  own  doubtful  title.  They 
shew  how  deeply  Elizabeth  was  penetrated  with  a 
sense  of  the  insecui'ity  of  her  position,  and  testify  to 
Claims  of  the  strength  of  Mary's  claim  and  of  the  sentiment 
^Uiart.  ill  its  favour.  Doubtless  other  and  more  potent 
causes  led  to  the  insistence  upon  Mary's  rights ;  yet 


HENRY  IV.  TO  ELIZABETH 


87 


these  alone  would  not  have  been  sufficient  to  render 
Mary  a  dangerous  competitor,  had  not  a  defective 
hereditary  title  been  felt  to  be  a  good  handle  against 
a  sovereign,  who  was  for  other  reasons  objectionable. 
Upon  no  other  grounds  were  Mary's  claims  formid- 
able; for  not  only  had  Henry  VIII.  been  at  pains 
to  exclude  the  Scotch  line  from  the  succession,  but 
this  disposition  had  been  ratified  by  Parliament  in 
the  first  year  of  Elizabeth's  reign^  It  appears, 
then,  that,  as  in  later  times,  there  was  some  popular 
sentiment  that  hereditary  right  was  indefeasible,  a 
'  fundamental  law,'  which  no  Act  of  Parliament  could 
override. 

Additional  evidence  of  this  is  the  statute  13  Eliz.  import- 
cap.  1^  which  makes  it  high  treason  to  question  "^'^"^^"^ 
the  right  of  Parliament  to  alter  the  succession.  This  13  EUz. 
Act  is  evidence  both  ways.    In  the  first  place  it ^' 
proves,  what  indeed  is  clear  on  other  grounds,  that 
neither  Elizabeth  nor  her  ministers  regarded  them- 
selves as  bound  by  the  rules  of  primogenitary  suc- 
cession, and  that  they  claimed  for  Parliament  absolute 
freedom  of  choice;  clearly,  hereditary  succession  is  no 
'  fundamental  law  '  to  them.   On  the  other  hand,  the  Popular 
doctrine  of  indefeasible  hereditary  right  would  not  ^^slT^'^* 
have  been  condemned,  had  it  not  been  prevalent  hereditary 
among  a  considerable  section  of  the  nation.  Thus, 
then,  in  the  theory  of  the  Tudor  period  assertions  of 
indefeasible  hereditary  right  are  not  to  be  expected ; 
actual  facts  are  against  it.    Probably,  however,  the 

»  1  Eliz.  c.  3,  §  2. 

^  Statutes  of  Realm,  iv.  52  :  also  printed  in  Pi  othero's  Statutes 
and  Constitutional  Documents,  89. 


88 


ENGLISH  KINGSHIP  FROM 


notion  was  widespread,  but  its  utterance  was  unsafe. 
The  sentiment  must  have  been  general,  or  the 
unanimity  which  welcomed  James  I.  to  the  throne 
would  have  been  impossible ;  for  James  had  no  title 
save  that  of  inherent  birth-right,  and  succeeded  in 
spite  of  the  two  Acts  of  Parliament  excluding  his 
house.    On  the  other  hand  the  existence  of  these 
statutes  and  that  discussed  above  is  alone  proof  that 
the  Crown  is  far  the  most  important  power  in  the 
State,  and  that  theories  are  prevalent  which  exempt 
it  from  all  restraints  in  regard  to  the  succession. 
A'atj/re  of       The  causes  and  character  of  the  Tudor  despotism 
despotism  need  not  be  here  discussed.    Yet  one  point  must  be 
implies      noted.    The  exaltation  of  the  royal  authority  was 

theories  of  . 

universal  due  to  the  need  of  a  strong  government.  The  crime 
obedience.  Lancastrian  dynasty  had  been,  not  that  it 

was  capricious  or  self-seeking  or  oppressive,  but  that 
it  was  weak,  that  law  and  order  were  not  maintained 
and  private  war  was  once  again  becoming  prevalent. 
It  is  as  '  saviours  of  society '  that  the  Yorkists  and 
afterwards  the  Tudors  win  their  position.  In  the 
statutes  of  liveries  and  in  the  Star  Chamber  is  to 
be  found  the  raison  d'etre  of  Tudor  despotism. 
Government  must  be  effective,  private  oppression 
must  be  punished,  great  offenders  must  be  forced 
to  submit  to  the  authority  of  the  Crown.  That 
is  the  general  sentiment.  In  a  word,  obedience 
^  must  be  enforced.  The  very  causes,  which  drove 
men  to  support  the  Tudors  at  all,  drove  them  also 
to  insist  on  the  paramount  importance  of  obedience, 
and  to  proclaim  the  iniquity  of  rebellion. 

But,  if  the  Tudor  dynasty  was  essentially  a 


HENRY  IV.  TO  ELIZABETH 


89 


dynasty  of  rulers,  the  Reformation  gave  to  them  a  Remit  of 
vast  accession  of  power.    One  aspect  alone  is  impor-  fo^^non. 
tant  here.    In  the  series  of  statutes  enacted  in  the 
years  1529 — 1534,  culminating  in  that  of  the  royal 
supremacy,  another  stage  was  reached  in  the  long 
struggle,  for  centuries  waged  by  the  English  kings 
against  clerical  immunities  and  the  political  claims 
✓  of  the  Papacy.    What  had  been  little  more  than 
an  aspiration  under  Henry  II.  or  Edward  III.  or 
Richard  II.  was   at  last  an  accomplished  fact. 
England  was  free  from  Papal  interference,  if  only 
she  could  maintain  her  position.    The  battle  was  The  inde- 
not  won  yet,  and  in  this  fact  lies  the  justification  ^j*^^"^*^^ 
of  men's  passionate  faith  in  the  Divine  Right  oi  Henry 
Kings.   We  are  too  apt  to  think  that,  from  the  time  ygt 
of  Henry  VIII.  or  at  least  of  Elizabeth,  the  success 
of  the  English  Reformation  was  assured.    The  per- 
sistent efforts  of  foreign  powers  to  convert  England, 
the  dreams  of  so  able  a  man  as  Gondomar\  and  the 
overtures  to  Charles  I.  and  Laud*,  are  alone  sufficient 
proof  to  the  contrary.    If  all  danger  of  England's 
submitting  to  the  Papal  yoke  were  over,  certainly 
the  fact  was  unknown  at  the  time  either  to  English 
statesmen  or  to  Papal  diplomatists.    England  in  the 
time  of  Henry  VIII.  asserted  her  claims  to  inde- 
pendence.   A  century  of  statesmanship  and  conflict 
was  required  before  they  were  finally  made  good. 
Thus  a  theory  was  needful  which  should  express  the 
national  aspirations.    It  was  impossible  to  assert 
the  sovereignty  of  the  English  Crown   and  its 

1  Gardiner,  History  of  England,  ii.  218,  19,  252—4. 

2  Ihid.  VIII.  ch.  Lxxix. 


90 


ENGLISH  KINGSHIP  FROM 


A  theory    independence  of  Papal  control  without  some  grounds 

needed  to    ,    .  .  _  i      -r.  > 

justifij  the  being  given,  it  was  necessary  to  meet  the  rope  s 
position     claim  to  allegiance  and  his  pretended  right  of  de- 

taken  mj>  .  .      °     .  .  ° 

agaimt     posing  kings,  with  some  counter  claim.    There  is 
the  Pope.        need  to  investigate  afresh  the  causes,  which 
determined  the  nature  of  this  counter  claim.  They 
^  were  at  work  in  the  earlier  struggles  between  the 
Empire  and  the  Papacy.    Clearly,  the  Pope's  claim 
to  a  universal  monarchy  by  Divine  Right,  and  to 
implicit  obedience  on  pain  of  damnation,  must  be 
met  in  similar  fashion,  whether  in  the  sixteenth  or 
the  fourteenth  century.    The  English  State  must 
assert  a  claim  to  Divine  appointment.  Obedience 
*^  must  be  demanded  as  due  by  God's  ordinance,  and 
all  resistance  must  be  treated  as  sin. 
Need  of         Now  it  is  to  the  conception  of  a  single  supreme 
"central      authority  in  the  State,  that  men  are  inevitably 
anthority.  driven  in  seeking  to  formulate  an  anti-papal  theory. 

Wearied  of  quasi-feudal  anarchy  and  disgusted  with 
ecclesiastical  interference,  Englishmen  felt  the  need 
of  relying  upon  one  central  power  and  of  asserting  its 
universal  jurisdiction.  Nor  could  it  seem  doubtful 
at  that  time,  who  was  vested  with  the  sovereignty. 
The  king  The  king  was  immeasurably  the  most  important 
naturally  element  in  the  State ;  in  the  case  of  Henry  VIII., 

regarded  '  . 

as'sove-  especially  after  the  Act  of  1539,  the  idea  of  sove- 
reignty was  almost  completely  realised  in  his  person'. 
It  is  far  easier  to  arrive  at  the  notion  of  sovereignty, 

1  31  Henry  VIII.  c.  8.  It  is  thus  described  by  the  Bishop  of 
Oxford.  "Here  was  a 'lex  regia' indeed;  a  dictatorship,  which  with 
all  conceivable  limitations,  left  the  'king  master  and  only  master' 
in  his  own  house. "  Lectures  un  Mediceval  and  Modern  History,  303. 


reign: 


HENRY  IV.  TO  ELIZABETH 


91 


if  it  be  seen  to  be  vested  in  a  single  person,  than  if 
it  belong  to  an  assembly  or  to  a  body  such  as  Par- 
liament, made  iip  of  more  than  one  assembly.  Only 
under  the  form  of  monarchy  does  the  notion  of 
sovereignty  readily  lend  itself  to  popular  exposition. 
Further,  the  Reformation  had  left  upon  the  statute  Act  of 
book  an  emphatic  assertion  of  unfettered  sovereignty  f^f^Jy  ' 
vested  in  the  king.  And  the  supremacy  of  the 
Crown  constituted  a  new  prerogative,  which,  since 
Parliament  could  allege  no  precedent  for  controlling 
it,  might  be  claimed  as  the  personal  right  of  the 
head  of  the  State.  Lastly,  the  king  had  the  name 
of  sovereign. 

That  complete  sovereignty  is  to  be  found  in 
some  person  or  body  of  persons  in  the  State  is  a 
necessity  of  effective  anti-papal  argument.  If  during 
the  Tudor  period  it  was  not  to  be  found  in  the 
Crown,  where  was  it  ?  Sir  Thomas  Smith  might 
indeed  write  of  the  power  of  Parliament',  but  if  the 
directing  will  is  the  supreme  power  in  the  State, 
Elizabeth  was  sovereign  far  beyond  any  despotic 
Premier  or  'uncrowned  king'  of  our  own  day.  If 
we  take  into  account  the  powers  of  arbitrary  juris- 
diction exercised  by  the  Privy  Council,  the  infre- 
quency  with  which  Parliament  sat,  and  its  lack  of 
independence  when  sitting,  there  can  be  no  doubt 
that  Elizabeth  was  the  person  'habitually  obeyed'  by 
the  majority  of  Englishmen  throughout  her  reign. 

'  De  Republica  Anglorum,  ii.  1.  Cf.  Maitland's  Introduction 
to  Mr  Alston's  edition  of  this  work.  Therein  it  is  shewn  how 
Sir  Thomas  was  halting  between  two  opinions  in  the  matter  of 
sovereignty. 


92 


ENGLISH  KINGSHIP  FROM 


Whether  based  upon  authority  or  influence,  the 
supreme  power  could  be  more  truly  conceived  as 
belonging  to  the  queen  alone  than  as  shared  with 
anyone  else.  Some  theory  of  uncontrolled  secular 
authority  is  needed  to  meet  the  Papal  claims ;  some 
power  must  be  called  into  play  to  overthrow  them. 
The  most  natural  theory  of  sovereignty  is  that  of 
monarchy.  The  only  authority  which  could  for  an 
instant  match  itself  with  the  Pope  was  that  of  the 
Crown.  For  the  purposes  of  theoretical  consis- 
tency and  practical  efficiency  alike,  a  doctrine  of 
y  sovereignty  vested  by  Divine  Right  in  the  king 
was  the  indispensable  handmaid  of  a  national 
Reformation. 

Obedience  For  a  time,  the  thought  will  suffice  of  the  uni- 
governing  versality  of  law  and  of  its  absolute  claim  on  the  con- 
thought  in  science.    Men  must  assert  the  power  of  the  Crown 

the  six-  111  PIT  • 

teinth  and  the  duty  of  obedience  to  it,  not  so  much  because 
century,  they  have  framed  any  general  notions  of  its  majesty 
and  dignity,  as  because  it  is  the  one  effective  au- 
thority. Royal  power  must  be  exalted  as  against 
that  of  the  Pope.  If  phrases  slip  in  which  grant 
to  kings  an  unconditioned  omnipotence,  which  few 
of  them  ever  dreamed  of  exercising,  that  is  rather 
because  no  one  as  yet  is  concerned  to  deny  them, 
than  because  they  are  construed  strictly  or  regarded 
as  of  much  importance.  Against  the  Papal  supre- 
macy the  unlimited  jurisdiction  and  authority  of 
kings  is  asserted.  That  these  positions  were  de- 
^  structive  of  popular  rights,  which  nobody  claimed 
and  nobody  exercised,  is  not  as  yet  seen.  Monarchy 
will  only  come  to  be  defended  for  its  own  sake  when 


HENRY  IV.  TO  ELIZABETH 


93 


Bellarmine  and  Suarez  have  elaborated  a  theory 
of  popular  sovereignty  as  a  weapon  against  recal- 
citrant monarchs,  and  when  Knox  and  Goodman 
have  proclaimed  the  lawfulness  of  resistance  (when 
the  Presbyterian  clergy  command  it)  and  the  duty 
of  deposing  'idolatrous'  kings.  Meanwhile  it  is  of  Divine 
kings  and  their  appointment  by  God  as  necessitating  of'l^^gl^ 
obedience  that  men  will  talk.  This  is  the  position 
most  easily  proved  from  Scripture  and  forms  the 
natural  antithesis  to  the  Papal  monarchy.  Un- 
limited authority  must  be  claimed  for  the  law  or 
the  king;  as  yet  there  seems  no  difference.  The 
king  is  the  source  and  interpreter  of  law ;  men 
have  no  fear  that  he  will  seek  to  change  existing 
arrangements  or  to  overstep  the  boundaries  set  by 
custom.  The  only  authorities  which  claim  unlimited 
allegiance  are  the  king  and  the  Pope ;  there  is  no 
question  as  yet  between  Crown  and  Parliament. 
Obedience  is  essential.  To  give  it  to  the  Pope 
dissolves  '  the  political  union.'  It  must  therefore 
be  due  to  the  king. 

Thus  it  is  obedience,  rather  than  a  theory  of  ^  theory 
government,  that  writers  in  the  sixteenth  century 
insist  upon.     Nor  did  they  repeat  the  error  of  the  State. 
Wycliffe  and  Ockham,  and  leave  a  loophole  for  sixteenth 
Papal  interference  by  admitting  the  possibility  of<^*"'"'^"^ 

.  .  ...  case  of  re- 

resistance  m  extreme  cases.    While  claiming,  as  the  sistance  is 
writers  of  the  fourteenth  century,  Divine  sanction 
for  secular  governments,  they  dwell  further  upon  the 
absolute  duty  of  non-resistance  in  all  cases. 

In  Tyndall's  work,  The  Obedience  of  a  Christian  1528. 
Man,  passive  obedience  is  inculcated  without  any 


94 


ENGLISH  KINGSHIP  FROM 


qualification.  No  terms  could  be  stronger  than  those 
in  which  the  writer  enforces  the  duty  of  non-resist- 
ance. Written  to  demonstrate  the  groundlessness 
of  the  charge  of  anai'chism  levelled  at  the  Reformers, 
the  book  asserts  that  the  Pope  is  the  true  anarchist, 
and  declares  that  under  Papal  dominion  "  kings  are 
but  shadows,  vain  names  and  things  idle,  having 
nothing  to  do  in  the  world,  but  when  as  the  holy 
father  needeth  their  help\"    Robert  Barnes  in  his 

1534.  Supplication  to  the  most  gracious  prince  Henry  VIII. 
and  Men's  Constitutions  hind  not  the  Conscience, 
declares  most  emphatically  in  favour  of  Passive  Obe- 
dience. Another  work  of  1534  carefully  expounds 
regal  authority  as  against  Papal,  and  claims  God's 
ordinance  on  behalf  of  kings  I    Bishop  Gardiner  in 

1535.  his  Oration  On  True  Obedience  developes  completely 
the  notions  of  absolute  subjection  to  the  sovereign, 
of  the  King's  power  being  God's  ordinance,  and  of 
the  sinfulness  of  resistance  ;  and  infers  from  this  the 
weakness  of  the  Papal  claims'.  More  clearly  than 
other  contemporary  writers,  he  sees  that  the  real 
question  is  not  as  to  the  religious  duty  of  obedience 
in  general,  but  of  the  limits  of  obedience  in  ex- 
treme cases ^    For  only  then  does  the  Pope  enjoin 

*  The  Obedience  of  a  Christian  Man,  114. 

2  Opus  eximium  de  vera  Differentia  Begiae  Putettatis  et  Ec- 
clesiasticae.    Goldast,  m.  22. 

^  The  argument  is  as  follows :  "If  he  [the  king]  be  the  head 
of  the  people,  and  that  by  the  ordinance  of  God,  as  no  man 
sayeth  nay,"  the  Pope's  claims  to  supremacy  must  fall  to  the 
ground  (58).  I  quote  from  the  reprint  of  Heywood's  translation 
of  1553. 

*  "It  is  certain  that  obedience  is  due,  but  how  far  the  limits 


HENRY  IV.  TO  ELIZABETH  95 

disobedience  ;  but  he  denies  that  any  limits  to  obedi- 
ence are  to  be  found  in  Scripture'.  Like  Wycliffe,  he 
repudiates  the  notion,  that  the  thirteenth  of  Romans 
can  refer  to  the  Pope.  The  distinction  between  the 
greater  and  lesser  lights  is  declared  to  be  a  "blind 
distinction  and  full  of  darkness^."  He  is  at  pains  to 
assert  that  the  royal  supremacy  is  no  new  doctrine, 
but  runs  through  English  history  and  implies  no 
more  than  that  "  the  Prince  is  the  whole  prince  of 
all  the  people  and  not  of  part^"  The  central  idea 
of  the  book  is  the  same  as  that  of  all  effective  anti- 
papal  treatises ;  that  obedience  is  due  to  the  king,  as 
a  divinely  appointed  governor.  Papal  precedents  of 
royal  subjection  are  brushed  away  by  a  development 
of  the  doctrine  nullum  tempus  occurrit  regi.  "  Time 
may  not  prescribe  against  God's  truth,"  and  kings 
cannot  alienate  a  God-given  right.  His  contention, 
that  examples  are  needless,  for  God's  law  is  constant, 
and  man's  precepts  variable,  implies  the  whole  force 
of  the  sentiment,  that  led  men  to  frame  a  theory  of 
the  Divine  Right  of  Kings'*.  A  stable  bulwark  w^as 
needed  against  the  Papal  attack.  Obedience  must 
be  absolute  and  immutable,  or  the  Pope  will  find  it 
possible  to  make  good  some  part  of  his  claim.  This 
can  only  be  if  the  power  of  the  Crown  be  regarded 

of  requiring  obedience  extend,  that  is  the  whole  question  that  can 
be  demanded."    Ibid.  59. 

'  "What  manner  of  limits  are  those  that  you  tell  me  of,  seeing 
that  the  Scripture  hath  none  such? "  Ibid. 

'  Ibid.  63. 

3  Ibid.  72.    "It  appeareth  that  the  thing  itself  which  was 
expressed  by  the  name  was  not  only  true  but  ancient." 
«  Ibid.  80,  81. 


96 


ENGLISH  KINGSHIP  FROM 


as  God's  appointment  and  non-resistance  as  a  Divine 
ordinance \ 

1543.  Tke  Necessary  Erudition  of  a  Christian  Man 
is  another  early  work,  which  authoritatively  asserts 
^  the  Divine  authority  of  Kings  and  the  iniquity  of  all 
resistance^  In  more  than  one  of  Latimer's  Sermons^ 
and  in  the  two  famous  Homilies,  that  of  the  reign 
of  Edward  VI.  entitled  An  Exhortation  concerning 
Order  and  Obedience,  and  that  of  Elizabeth's  collec- 
tion directed  Against  Wilful  Rebellion,  the  religious 
basis  of  non-resistance  is  asserted.  Doubtless  it  is 
true,  as  the  popular  party  afterwards  claimed,  that 
it  is  non-resistance  to  law  which  is  here  set  forth  in 
general  terms ;  and  that  no  guidance  is  given  by  the 
Homilies  for  the  case  of  a  monarch,  like  James  II., 
arbitrarily  violating  the  laws. 

In  the  reign  of  Elizabeth  there  are  the  strong 
assertions  of  Jewel  that  "obedience  is  due  to  princes 
and  magistrates  though  they  be  very  wicked  V'  that 

1  Gardiner  declares  that  his  purpose  in  writing  is  "to  move  all 
men  to  obedience,  which  only  in  the  couimandmeuts  of  God  and 
for  God's  sake  maketh  us  happy  and  blessed."    [Ibid.  101.) 

2  The  Necessary  Erudition  of  a  Christian  Man,  the  Fifth  Com- 
mandment. "  Scripture  taketh  princes  to  be  as  it  were  fathers 
or  nurses  to  their  subjects."  "By  this  commandment  also 
subjects  be  bound  not  to  withdraw  their  said  fealty,  truth,  love 
and  obedience  towards  their  princes,  for  any  cause  whatsoever  it 
be,  ne  for  any  cause  they  may  conspire  against  his  person,  ne  do 
anything  towards  the  hindrance  or  hurt  thereof."  The  terms  of 
the  following  passage  are  significant.  "And  furthermore  by  this 
commandment  they  be  bound  to  obey  also,  all  the  laws,  proclama- 
tions, precepts  and  commandments  made  by  their  princes  and 
governors  except  they  be  against  the  commandment  of  God." 

^  Latimer's  Sermons,  148,  496. 
Apology  for  the  Church  of  England.    Jewel's  Works,  in.  74. 


HENRY  IV.  TO  ELIZABETH 


97 


the  "  Pope  ought  to  acknowledge  and  call  the  Em- 
peror Lord  and  Master,"  and  that  "  we  ought  so  to 
obey  princes  as  men  sent  of  God 

The  arguments  of  Jewel's  Apology  are  evidence  Contro- 
of  the  direct  connection  between  the  theory  of  the  p^JriaLl"'^ 
sixteenth  and  seventeenth  centuries  and  the  earlier  of  early 
Imperialist  doctrine.  Further  evidence  is  the  transla-  hiTtory^.'^ 
tion  of  Marsiglio's  great  work  which  was  published  in 
1535,  the  chapter  on  the  modes  of  restraining  a  bad 
prince  being  significantly  omitted  as  not  "pertaining 
to  this  realm  of  England."  Bilson's  work.  The  True  1585. 
Difference  between  Christian  Subjection  and  un- 
christian Rebellion  is  important,  as  not  merely 
containing  a  theory  of  non-resistance,  but  also  as 
covering  almost  the  whole  ground  of  the  historical 
argument  against  the  Papal  claims.  The  relations  of 
Popes  and  Emperors  form  the  subject  of  many  a  page 
of  anti-papal  argument,  which  must  seem  to  modern 
readers  pedantic  and  unimportant  But  the  indepeiid- 
^ence  of  the  Emperors  was  the  necessary  ground  on 
which  to  rest  the  later  claim  to  the  independence 
of  all  states.  Without  this,  it  was  impossible  to 
prefer  for  national  independence  any  claim  founded  on 
right  as  distinct  from  force.  If  the  King  was  or  had 
been  supreme  and  free  from  Papal  control,  nothing 
of  course  could  alter  the  fact.  But  it  was  no  more 
than  a  fact.  The  Pope  claimed  a  Divine  Right  for 
his  position,  and  this  could  only  be  met  by  a  counter 
claim  not  of  fact,  but  of  right.  The  historical  ques- 
tion depended  entirely  upon  the  relations  of  Popes 
and  Emperors,  Eastern  as  well  as  Western.    If  it 

*  Apology  for  the  Church  of  England.    Jewel's  Works,  in.  76. 
F.  7 


98 


ENGLISH  KINGSHIP  FROM 


could  be  clearly  proved,  that  in  early  times  the  Pope 
had  submitted  without  a  murmur  to  the  authority 
of  the  Emperor,  the  fact  would  go  far  to  justify 
the  assertion  that  the  political  claims  of  the  Papacy 
were  of  modern  growth,  and  rooted  in  nothing  better 
than  the  false  decretals  and  acts  of  power.  In  the 
view  of  the  defenders  of  the  Act  of  Supremacy  the 
position  of  the  Pope  was  that  of  a  usurper.  The 
Protestant  writers  were  maintaining  the  claims  of 
the  genuine  heir.  It  is  true  that  their  contention 
could  not  be  demonstrated  by  shewing  that  Papal 
interference  was  of  recent  growth ;  yet  such  a  proof 
would  raise  a  strong  presumption  in  their  favour. 
Thus  the  position  of  Constantine,  the  rights  of 
Julian,  the  acts  of  Theodosius,  the  powers  of  Jus- 
tinian, the  claims  of  the  mediaeval  Emperors  were 
of  vital  importance  in  the  controversy.  Unless  the 
Imperialist  position  were  tenable,  the  Pope's  claims 
were  unassailable  historically,  and  there  would  be 
small  ground  for  the  oft-repeated  assertion  of  the 
freedom  of  the  English  monarchy.  If  the  Pope 
had  always  claimed  and  exercised  the  powers  he 
now  pretended  to,  there  was  good  reason  for  sup- 
posing them  given  of  God.  If  on  the  other  hand 
they  were  originally  vested  in  the  Emperor,  his  power 
must  be  of  God,  and  the  cause  of  secular  governments 
in  general  was  justified.  Thus  that  Paul  of  Samosata 
or  the  Donatists  appealed  not  to  the  Pope,  but  to 
the  Emperor,  is  no  mere  academic  point,  but  a 
necessary  step  in  an  argument  of  incalculable  practi- 
cal importance.  This  fact  may  account  also  for  the 
leaning  some  shew  in  the  direction  of  Erastianism. 


HENRY  IV.  TO  ELIZABETH 


99 


Bilson,  for  instance,  appears  thoroughly  to  approve 
the  conduct  of  the  Eastern  Emperors  in  regard  both 
to  Popes  and  Patriarchs.  His  desire  to  demonstrate 
the  political  supremacy  of  the  secular  power  carries 
him  to  extremes. 

Bilson's  book  is  further  noteworthy,  in  that  it  Bihon  on 
contains  not  merely  the  customary  announcement  taryMon- 
that  the  King's  power  is  from  God  and  subject  a'c'^y- 
to  him  alone,  but  also  a  demonstration  that  God 
especially  prefers  hereditary  monarchy.    From  the 
example  of  the  Davidic  kingdom  the  author  infers  that 
"  succession  in  kingdoms  hath  not  only  the  consent 
of  all  ages  and  nations;  but  the  manifest  subscrip- 
tion of  God  himself ;  that  it  is  His  special  favour 
and  blessing  to  continue  the  successions  of  godly 
princes^" 

The  last  instance  of  anti-papal  argument  that  1571. 
need  be  considered  here  is  Bullinger's  reply  to  the 
Bull  of  Pope  Pius  V.  excommunicating  Elizabeth. 
In  this  the  anti-papal  character  of  Tudor  theories  of 
obedience  is  fully  exemplified.  The  author  declares 
that  the  Pope  usurps  the  rights  granted  to  Kings 
by  God,  but  regards  (naturally  enough)  these  rights 
as  equally  attributable  to  the  supreme  power  in  a 
republic ^  and  equally  granted  by  God  in  that  case. 
With  Mary  Stuart  still  alive  he  is  at  pains  to  declare 
that  the  succession  to  the  Crown  goes  by  election'. 
One  phrase  of  this  book  expresses  the  whole  senti- 
ment at  the  root  of  the  theory  of  the  Divine  Right 

1  True  Difference,  515. 

'  Bullae  Papisticae  Eefutatio,  44. 

s  Ibid.  69. 

7—2 


100 


ENGLISH  KINGSHIP  FROM 


of  Kings :  The  bonds  of  political  society  are  not 
dissolved,  hut  strengthened  by  the  word  of  God^. 

It  is  the  occasion  of  this  treatise  which  marks  most 
completely  the  necessity  of  a  theory  of  the  Divine 
Right  of  Kings.  So  long  as  the  Popes  were  content 
with  a  general  claim,  or  dreamed  of  converting 
Elizabeth,  an  uncompromising  royalist  doctrine  was 
scarcely  needed.  But,  when  it  was  attempted  to  put 
the  theory  into  practice,  and  all  good  Catholics  were 
bidden  to  become  traitors  on  religious  grounds,  it 
was  necessary  that  a  theory  should  appear  of  the 
religious  duty  of  obedience  to  the  established 
government.  Loyal  and  patriotic  feeling  under 
the  circumstances  must  inevitably  lead  to  the 
exaltation  of  the  dignity  and  authority  of  the 
Crown.  Its  complete  independence  of  the  Pope,  its 
institution  by  God,  and  the  duty  of  non-resistance 
must  now  be  emphasized  with  wearisome  reiteration, 
if  the  State  was  to  retain  the  allegiance  of  those 
large  numbers  who  were  gazing  with  longing  and 
regret  at  the  old  order.  From  the  year  1570  of  the 
Bull  of  excommunication  there  is  a  king  '  across  the 
water'  claiming  allegiance,  threatening  and  sometimes 
organizing  descents  upon  the  coast.  Every  patriotic 
Englishman  must  henceforth  affirm,  that  his  own 
princess  is  the  lawful  recipient  of  obedience,  with 
as  good  or  better  title  than  that  of  the  Pope ;  in 
a  word  that  she  is  Queen  by  Divine  Right.  If  the 
Pope  had  excommunicated  Council  or  Parliament, 
men  might   have  urged  the  divine  authority  of 

'  "At  politica  vel  civilis  gubernatio  confirmatur,  ncin  dissolvitur 
verbo  Domini."    Bullae  Papisticae  Refutatio,  71. 


HENRY  IV.  TO  ELIZABETH 


101 


the  Sanhedrim  or  God's  favours  to  the  chosen 
people.  But  since  it  was  the  Queen  who  was 
deposed,  the  Queen  must  be  defended,  and  the 
rights  of  the  Crown  shewn  to  exist  by  a  Divine 
decree. 

Lastly,  it  may  be  observed  that  the  position  of  Effect  of 
affairs  in  respect  of  the  succession  had  undergone  of  Mary 
a  change  towards  the  close  of  the  reign.    It  was  no  Stuart. 
longer  necessary  to  speak  of  hereditary  right  with 
bated  breath.     So  long  as  Mary  Stuart  lived,  to 
enforce  the  claims  of  strict  right  might  be  to 
countenance  immediate  rebellion  ;  certainly  it  would 
pave  the  way  for  a  Papal  reaction  that  was  likely 
to  prove  more  lasting  than  that  under  Mary  Tudor. 
But  now  that  the  young  King  of  Scotland  was 
heir  according  to  strict  rule,  there  was  nothing  to 
prevent  the  national  sentiment  in  favour  of  legi- 
timism exerting  its  full  force.    Besides,  it  is  the  Papalists 
Roman  writers  who  now  begin  to  attack  the  doc-  "W^"*^ 

o  doctrine  oj 

trine.  Doleman's  Conference  about  the  Next  Succession  hereditary 

•  •  succession 

to  the  Grown  of  England  (written  by  the  Jesuit  1593 
Parsons)  proclaims  in  strident  tones  the  new  alliance 
between  Papal  sovereignty  and  popular  rights.  The 
author  repeatedly  declares  that  "Propinquity  of  birth 
or  blood  alone,  without  other  circumstances,  is  not 
sufficient  to  be  preferred  to  a  Crown '  " ;  that  forms 
of  government  are  variable  and  may  be  established 

*  A  Conference  about  the  Next  Succession,  1;  cf.  also  11,  "It 
[that  any  prince  hath  his  particular  government  or  interest  to 
succeed  by  institution  of  nature]  is  ridiculous,  for  that  nature 
giveth  it  not,  but  the  particular  constitution  of  every  common- 
wealth within  itself." 


102 


ENGLISH  KINGSHIP  FROM 


and  changed  according  to  the  will  of  the  community^; 
that  "  the  succession  to  government  by  nearness  of 
blood  is  not  by  Law  of  Nature  and  Divine,  but  by 
human  and  positive  laws  only  of  every  particular 
government,  and  consequently  may  upon  just  causes 
be  altered  by  the  same^"  The  basis  of  the  author's 
political  theory  is  frankly  utilitarian;  Doleman  asserts 
that  "the  Commonwealth  hath  authority  to  dispossess 
them  that  have  been  lawfully  put  in  possession,  if  they 
fulfil  not  the  Laws  and  Conditions  by  which,  and  for 
which  their  dignity  was  given  them^"  He  upholds  the 
right  of  resistance,  although,  with  a  shrewd  eye  to 
the  Papal  supremacy,  he  forbids  it  to  be  exercised 
by  "  private  men,"  who  are  inferior  to  the  Prince ; 
whereas  the  Commonwealth  is  superior  to  him''. 
The  importance  of  the  Coronation  oath  as  implying 
the  conditions  of  allegiance  is  insisted  upon. 

In  this  book  there  is  found  the  complete 
expression  by  an  Englishman  of  the  doctrines  of 
the  right  of  resistance,  of  popular  sovereignty,  and 
the  merely  official  character  of  kingship.  These  are 
proclaimed  purely  in  the  interests  of  the  Papal 
monarchy,  without  the  smallest  enthusiasm  for 
liberty.  The  book  appears  to  have  been  widely 
circulated,  as  the  ability  with  which  it  was  written 
deserved.  Doleman  is  the  most  frequent  subject  of 
attack  by  supporters  of  James,  and  his  work  is 

1  A  Conference  about  the  Next  Succession,  10.  "The  Common- 
wealth hath  power  to  choose  their  own  fashion  of  government,  as 
also  to  change  the  same  upon  reasonable  causes." 

^  Ibid.  cap.  I.  title. 

8  Ibid.  26.  *  Ibid.  58, 


HENRY  IV.  TO  ELIZAHETH 


103 


evidently  regarded  as  the  most  salient  exposition  of 
the  treasonable  character  of  the  Papal  aims.  Speed,  1611. 
in  describing  the  peaceful  accession  of  James,  goes 
out  of  his  way  to  make  a  thrust  at  this  treatise  in 
particular.  "  Let  Doleman  therefore  dote  upon  his 
own  dreams,  and  other  like  traitors  fashion  their 
bars  upon  the  People's  forge ;  yet  hath  God  and 
his  right  set  him  on  the  throne  of  his  most  lawful 
inheritance  ^" 

By  the  irony  of  fate  the  work  was  not  only  Use  made 
hashed  up  in  the  interests  of  the  Puritan  party  in  \ale'r° 
1647 ;  but  had  the  fortune  to  be  reprinted  by  the 
supporters  of  the  Exclusion  Bill  as  the  best  com- 
pendium of  arguments  against  the  doctrine  of 
inherent  rights  It  was  strange  that  a  work  written 
to  exclude  a  Protestant  prince  from  the  throne  of 
England  should  have  exercised  its  most  efifectual 
influence  in  all  but  causing  the  exclusion  of  a 
Papist'. 

*  Speed's  History,  911. 

'  Halifax  charges  the  author  of  the  History  of  the  Succession 
with  plagiarism  from  Doleman,  from  whom  he  asserts  all  his 
arguments  to  have  been  drawn. 

3  Cardinal  Allen's  Defence  of  the  English  Catholics  is  based 
upon  a  similar  theory  of  popular  rights  to  that  of  Parsons.  The 
purpose  of  the  book,  however,  is  to  justify  the  deposing  power,  and 
the  succession  is  not  discussed.  Yet  Allen's  insistence  on  the 
importance  of  the  coronation  ceremony  as  conferring  rights 
upon  the  Pope  is  interesting.  Once  more  it  is  in  the  necessities 
of  Papalist  controversy  that  originates  the  theory  that  the  corona- 
tion oath  proves  the  existence  of  a  compact  between  king  and 
people.  ' '  Upon  these  conditions  [the  oath  to  preserve  the  Catholic 
faith]  therefore,  and  no  other,  kings  be  received  of  the  Bishop  that 
in  God's  behalf  anointeth  them ;  which  oath  and  promise  not  being 


104 


ENGLISH  KINGSHIP  FROM 


Anti-  From  this  time  forth  anti-papal  writers  will  feel 

writers  bound  to  attack  the  notions  of  popular  sovereignty 
henceforth  put  forward  by  the  great  Jesuit  controversialists 

strong         .  o 

supporters  in  order  to  serve  the  occasion.  Doleman,  Bellar- 
of  absolute  jj^jjjg  j^nd  Suarez  are  the  betes  noires  of  Anglican 

monarchy.     ...  . 

divines.  Against  them,  as  the  preachers  of  resist- 
ance and  inventors  of  the  theory  of  original  compact, 
the  heavy  artillery  of  the  royalist  pamphleteers 
is  always  directed.  The  attempt  of  the  Jesuits 
to  manufacture  anti-monarchical  sentiment  in  the 
interests  of  the  Papal  claims  could  not  but  have  as 
its  main  result  the  effect  of  causing  orthodox 
English  churchmen  to  attach  an  increased  value  to 
kingship  and  to  emphasize  the  peculiar  importance 
of  hereditary  succession. 
cir.  1600.  Heywood's  Royal  King  and  Loyal  Subject ' 
reaches  perhaps  the  high-water  mark  of  sixteenth 
century  loyalism.  The  plot  and  general  development 
of  this  play  have  no  other  object  than  that  of 
illustrating  the  virtue  of  absolute  obedience  under 
oppressive  and  tyrannical  treatment.  To  the  King 
of  England  is  attributed  arbitrary  and  unlimited 
authority.  Loyalty  could  hardly  go  further  than 
the  unbroken  submission  of  the  Earl  Marshal,  nor 
could  caprice  ever  make  more  unreasonable  demands, 
than  the  King  in  this  play.    The  author  evidently 

observed,  they  break  with  God  and  their  people  ;  and  their  people 
may,  and  by  order  of  Christ's  supreme  minister  their  chief  Pastor  in 
earth,  must  needs  break  with  them  ;  heresyandinfidelity  iu  thePrince 
tending  directly  to  the  perdition  of  the  Commonwealth  "  (113). 

1  For  the  probable  date  of  the  play  see  J.  Payne  Collier  in 
Introduction  (p.  vi)  to  the  reprint  by  the  Shakespeare  Society. 


HENRY  IV.  TO  ELIZABETH 


105 


wrote  his  work  with  the  one  aim  of  inculcating  this 
lesson  of  royal  omnipotence  and  perfect  obedience. 
Nor  is  the  play  evidence  of  Heywood's  sentiments 
only;  its  success  testifies  to  those  of  hia  audience. 
Assuredly  no  other  motive  but  that  of  loyalty  could 
have  led  to  such  a  play  being  '  acted  with  applause/ 
as  we  are  told  that  it  was.  Despite  the  recent 
panegyric  on  the  author  by  a  republican  critic',  it 
may  be  questioned  whether  this  production  is  not 
too  deficient  in  dramatic  power  and  poetic  interest 
to  have  afforded  pleasure  to  an  audience  that 
was  not  steeped  in  royalist  sentiment.  Of  The 
Maid's  Tragedy,  which  was  a  little  later,  the  same 
cannot  be  said.  Yet  that  also  proves  how  strong  was 
the  popular  belief  in  the  mystical  nature  of  king- 
ship and  in  its  claims  to  unquestioning  obedience. 

Thus,  then,  it  appears  that  by  the  close  of 
the  sixteenth  century  events  had  done  much  to 
strengthen  the  monarchy,  and  to  generate  notions 
of  its  Divine  institution ;  and  that  there  had  been 
elaborated  a  theory  of  the  unlimited  jurisdiction  of 
the  Crown  and  of  non-resistance  upon  any  pretence, 
which  was  not  to  be  brought  to  the  test  of  popular 
criticism  until  the  next  century.  These  notions  had 
all  arisen  out  of  the  necessities  of  the  struggle  with 
the  Papacy,  although  the  Civil  Wars  of  the  previous 
age  had  doubtless  produced  by  way  of  reaction  a 
sense  of  the  necessity  of  securing  strong  government 

1  Mr  Swinburne  in  Nineteenth  Century,  Oct.  1895  (400),  The 
Romantic  and  Contemporary  Plays  of  Thomas  Heywood.  It  is 
fair  to  say  that  The  Royal  King  is  not  placed  on  a  level  with  most 
of  the  author's  works. 


106         ENGLISH  KINGSHIP  FROM  HENRY  IV. 


and  universal  obedience  to  the  law.  English  contro- 
versialists, in  answering  the  theory  of  the  Papal 
supremacy,  were  driven  to  propound  a  doctrine  of 
the  Divine  Right  of  secular  governments,  which  is 
in  its  essential  meaning  no  other  than  the  Imperialist 
theory  of  two  centuries  and  a  half  before.  To  the 
Empire  ancient  and  mediaeval  they  go  for  the 
historical  justification  of  their  position,  and  for  the 
rest  build  up  their  argument  with  texts  and 
illustrations  from  Scripture.  Theories  of  inherent 
rights  of  birth  as  governing  the  succession  are  latent 
rather  than  expressed.  But  the  sentiment  in  favour 
of  indefeasible  hereditary  right  has  been  steadily 
growing,  and  will  appear  triumphant,  so  soon  as 
"  England's  Empress "  shall  have  left  the  way  free 
for  a  successor,  reigning  by  right  of  birth  alone. 


CHAPTER  VI 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 

The  political  and  religious  qxiestions  which  occu-  Similarity 
pied  the  minds  of  Englishmen  in  the  seventeenth  fg^trch"'^^ 
century  find  their  counterpart  in  controversies  evoked  versy  in 
during  the  French  Wars  of  Religion ^  In  the  theories  and 
of  Huguenots,  Lorrainers  and  Politiques  appear  most 
of  the  ideas,  of  which  we  hear  so  much  in  England  a 
little  later.  France  indeed  was  a  soil  peculiarly  suited 
to  the  development  both  of  Regal  and  Papal  theories. 
From  the  position  of  the  King,  as  eldest  son  of  the 
Church,  men  might  demonstrate  his  subjection  to 
the  Pope.    The  deposition  of  Childeric  by  Pope  752. 
Zacharias  was  the  earliest  exercise  of  the  deposing 
power,  and  was  alleged  by  the  supporters  of  the 
league  against  both  Henry  III.  and  Henry  IV.  as 
conclusive  proof,  that  this  power  had  been  recog- 
nized in  the  past.    In  no  other  country  is  the 
connection  of  politics  and  theology  more  intimate 
and  vital.    Of  pure  politics  there  is  even  less  than 
there  is  in  England  in  the  next  century.  Political 
theory  is  rarely  developed,  save  with  the  object  of 
strengthening  some  theological  position. 

'  On  this  point  and  the  position  of  Henry  IV.  see  the  remarks 
in  Seeley's  Growth  of  British  Policy,  i.  68. 


108    HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


The  pretensions  of  the  Huguenots  to  be  taking 
up  arms  against  their  prince  by  the  authority  of  God 
exemplify  the  fact,  more  patent  later  in  Scotland  and 
England,  that  the  Presbyterian  and  the  Papal  theories 
of  politics  have  common  elements.  The  essence  of 
both  is  the  claim  put  forward  by  an  ecclesiastical 
organization  to  control  and  direct  the  action  of  the 
State,  although  in  the  case  of  Presbyterianism  the 
acceptance  of  the  doctrine  of  the  '  two  kingdoms ' 
makes  for  liberty  (cf  Appendix  ill — Jus  Divinum  in 
1646).  Huguenot  Preachers  and  Presbyterian  Dis- 
ciplinarians are  like  their  Papalist  enemies  in  this, 
that  they  would  place  the  secular  power  under  the 
heel  of  the  spiritual,  or  else  would  claim  the  exercise 
of  sovereign  rights  for  a  portion  of  the  community. 
It  was  as  a  danger  to  the  State,  claiming  for 
themselves  an  imperium  in  imperio,  that  the  Hugue- 
nots as  a  political  power  were  finally  crushed  by 
Richelieu,  while  religious  liberty  was  preserved  to 
them. 

Again,  in  the  position  assumed  by  the  League 
with  regard  to  Henry  III.,  there  is  much  that  is 
parallel  to  the  relation  between  Charles  I.  and  the 
Long  Parliament.  Henry  is  lawful  king ;  no  one 
doubts  it.  Yet  he  must  be  restrained  and  coerced 
by  force  of  arms  in  the  interests  of  the  Crown 
which  he  wears.  The  distinction  between  the  per- 
sonal and  political  authority  of  the  Crown  first  arose, 
as  has  been  shewn,  in  England  under  Edward  II.,  and 
will  reappear  during  the  Great  Rebellion.  But  the 
conception  of  their  office  entertained  by  the  ultra- 
royalist  rebels  of  the  League  is  precisely  similar. 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  109 


They  too  claim  to  be  taking  up  arms  against  the 
person  of  their  king  in  support  of  his  authority. 

Lastly,  the  reign  of  Henry  IV.  is  the  supreme 
triumph  of  legitimism,  and  far  outdoes  in  import- 
ance the  accession  of  James  I.  to  the  English  Crown. 
James  I.  had  the  sentiment  of  the  whole  English 
nation  at  his  back ;  and  the  very  few  disloyal 
Catholics  were  a  negligible  quantity  compared  with 
the  League.  Henry  of  Navarre,  with  almost  every- 
thing against  him  save  his  right  as  legitimate  heir  by 
the  Salic  law  and  the  grant  of  God,  yet  made  good 
his  claim  to  the  Crown.  His  success  finally  disposed 
of  any  claims  of  the  right  of  election  or  of  the  Papal 
sanction,  and  testified  to  the  depth  of  the  sentiment 
in  favour  of  hereditary  succession  by  rule  of  law. 
Yet  the  issue  was  in  one  respect  different  from  any 
possible  question  of  English  politics.  The  strength 
of  Hem-y's  position  was  not  as  that  of  James  I.  or 
Charles  II.,  the  indefeasible  right  of  the  heir  ac- 
cording to  the  rule  of  primogenitary  succession.  It 
was  the  Salic  law,  as  commonly  understood,  that 
gave  him  his  claim,  and  its  inviolability  is  of  the 
essence  of  all  arguments  in  his  support.  He  was 
not  the  heir  by  primogeniture,  and  had  the  Crown 
descended,  as  in  England,  the  Duchess  of  Savoy ^ 
must  have  worn  it. 

Hence  there  will  be  an  important  difference 

'  Catharine,  who  married  Charles  Emmanuel  the  Great,  was 
Philip's  elder  daughter  by  Elizabeth  of  Valois.  The  claim  to  the 
throne  of  France  was  however  put  forward  on  behalf  of  Isabella, 
the  second  daughter.  The  reason  apparently  was  that  she  was  as 
yet  unmarried. 


110     HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


between  French  and  English  theories  of  Kingship. 
The  inviolability  of  the  succession  "  as  by  law  esta- 
blished "  will  play  a  much  greater  part  in  French 
controversy.    Supporters  of  Henry  IV.  can  hardly 
develop  si;ch  a  theory  as  that  of  Filmer,  for  the  Salic 
law  is  an  artificial  institution ;  and  it  can  scarcely 
be  claimed,  that  it  has  the  author  of  Nature  on 
its  side.    At  least,  the  Divine  Right  of  the  law  of 
succession  is  less  plausible  a  doctrine  in  France  than 
in  England.    We  must  expect  then  to  find  French 
theory  more  legal  than  English.    The  Salic  law 
is  "  the  peculiar  institution "  and  especial  glory  of 
France ;  but  universality  cannot  well  be  claimed  for  it. 
In  Filmer  and  Leslie  we  have  what  purports  to  be  a 
universal  system  of  politics.   This  will  be  less  possible 
I  in  France.    French  theory  is  in  many  respects  iden- 
\  tical  with  English,  but  in  this  matter  it  must  differ 
\  from  it.   French  thought  will  be  less  theological,  less 
t  transcendental,  more  legal  and  local  than  English. 
Position  of      But  against  the  claims  of  the  Pope,  Gallican 

France  in         ,  ■  ■^^    ^  •  •  *      i • 

regard  to   doctrine  Will  be  as  uncompromising  as  Anglican. 

the  Pope.  Its  historical  justification  is  indeed  stronger.  French 
authors  can  look  back  to  a  long  series  of  triumphs 
over  Papal  aggression,  they  can  point  to  conflicts 
no  less  acute  and  more  successful  than  any  which 
England  had  witnessed  in  pre-Reformation  days. 
The  triumph  of  Philip  the  Fair  over  Boniface  VIII. 
is  the  most  impressive  event  in  the  relations  between 
France  and  the  Papacy' ;  whereas  in  power  to  strike 

1  King  James  remarks, ' '  Most  notable  is  the  example  of  Philip 
the  Fair,  and  hits  the  bird  in  the  right  eye"  (Works,  412). 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  111 


the  imagination  the  submission  of  John  to  Innocent 
III.  far  outdoes  any  of  the  successful  efforts  of  the 
English  kings.  A  Frenchman  can  detail  with  pride 
the  relations  of  Charles  VI.  to  Benedict  XIII.,  or  of 
Louis  XII.  to  Julius  and  can  even  point  to  the 
recent  refusal  of  Henry  II.  to  admit  the  validity  of 
the  Tridentine  decrees".  Whereas  in  England  the 
Popes  had  constantly  protested  against  all  legislation 
directed  against  their  autocracy,  their  partial  re- 
cognition and  i-eluctant  endurance  of  the  Gallican 
liberties'  may  be  adduced  to  prove,  that  in  the  case 

^  See  especially  Toussaint  Berehet,  Pium  Consilium  super 
Papae  Monitoriiilibus,  Pars  i. 

'  Apologia  Catholica,  186,  7.  "Interea  vero  dum  legitimum 
illud  concilium  expectatur  neque  Rex  Francorum  neque  supremae 
ipsius  Curiae  Concilii  illius  Tridentini  decreta  unquam  in  hoc 
regno  mandari  voluerunt,  necnisi  ab  Ecclesiasticis,  qui  Pontificiae 
Monarchiae  subsunt,  fuerunt  recepta.  Contra  Rex  Henricus  II. 
piae  memoriae  certam  legationem  misit,  qua  huic  Concilio  (prout 
Concilium  esse  volunt)  obsisteret  et  renuutiaret  se  nullo  pacto  id 
probaturum  esse.  Etenim  revera  illud  accipi  non  potest,  quin 
eadem  opera  corrumpantur  et  jura  autboritasque  Francorum 
Regis,  et  Vetera  decreta  in  summis  Regni  Ordinibus  constituta 
pragmaticae  sanctionis  nomine  et  sanctissimae  libertates  Ecclesiae 
Gallicanae,  quibus  florentissime  bujus  regni  dignitas  conservatur." 

'  On  the  Pragmatic  Sanction,  see  Creighton,  History  of  the 
Papacy,  ii.  198,  9  and  423  sqq.  "It  was  a  memorial  of  national 
opposition  to  the  theory  of  the  Universal  Church.  It  expressed 
the  claim  of  a  temporal  ruler  to  arrange  at  his  pleasure  the  affairs 
of  the  Church  within  his  realms."  Louis  XI.  first  abolished  the 
Pragmatic  Sanction  and  afterwards  restored  its  provisions  by 
royal  ordinance.  "The  Pragmatic  Sanction  rested  on  the  basis 
of  the  power  of  General  Councils,  of  an  inherent  right  of  self- 
government  in  the  Universal  Church,  which  was  independent  of 
and  superior  to  the  Papal  monarchy  "  {Ibid.  iv.  231).  Although 
the  Pragmatic  Sanction  was  superseded  by  the  Concordat  of 


112    HENRY  OF  NAVARKE  AND  THE  SALIC  LAW 


of  France  all  claims  to  political  supremacy  have 
been  expressly  renounced  by  the  Pope. 

Yet  there  were  difficulties  in  the  position  of 
French  Catholics,  to  which  neither  Imperialists  nor 
Anglicans  were  exposed.  For  they  admitted  the 
spiritual  claims  of  the  Papacy,  and  it  is  far  from  easy 
to  do  this,  while  denying  in  toto  its  pretensions  to 
political  supremacy.  It  was  itnpossible  for  the  sup- 
porters of  the  King  to  take  the  line  of  the  Imperialists 
and  boldly  to  claim  that  the  Pope  was  amenable  to  the 
jurisdiction  of  their  master.  To  admit,  as  did  French 
Catholics,  that  the  Pope  is  a  sovereign  prince,  and  that 
he  further  has  spiritual  authority  over  the  orthodox  in 
every  nation,  is  to  grant  him  a  power  of  interference, 
out  of  which  very  little  ingenuity  is  required  to  con- 
struct a  theory  of  universal  supremacy.  Nor  on  the 
other  hand  can  the  politiques  boldly  cut  the  knot  in 
the  Anglican  method, by  denying  that  the  Pope  is  head 
of  the  Church.  The  inconsistency  of  their  position 
necessarily  affected  their  theory.  Since  it  was  hard 
for  French  writers  to  reconcile  the  liberty  claimed  for 
the  French  king,  with  the  authority  allowed  to  the 
Pope,  they  may  be  expected  to  be  less  clear  than  either 
Englishmen  or  Imperialists  in  their  statement  of  the 
necessary  unity  of  the  sovereign  power.    Save  in  the 

Francis  L  with  the  Pope,  yet  the  sentiment  it  enshrined  was 
preserved:  the  new  arrangement  gave  no  further  rights  to  the 
Pope,  but  relieved  the  Crown  from  the  fear  of  being  thwarted  by 
the  leaders  of  the  Galilean  Church.  So  to  say,  the  Pragmatic  Sanc- 
tion had  affirmed  the  independence  of  the  nation,  the  Concordat 
secured  the  supremacy  of  the  Crown.  On  this  aspect  of  the 
Concordat  see  Kitchin,  History  of  France,  ii.  182,  and  Armstrong, 
French  Wars  of  Religion,  122. 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  113 


case  of  writers  with  a  Huguenot  bias,  this  notion  is 
far  less  prominent  in  French  than  in  English  or 
mediaeval  opponents  of  the  Papal  claims.  A  little 
want  of  harmony  and  consistency  in  this  matter  was 
to  be  expected  from  the  circumstances  of  the  case. 
With  this  brief  account  of  the  causes  which  led  to 
the  growth  in  France  of  a  theory  similar  in  its  main 
scope,  though  different  in  certain  details  from  the 
English  doctrine,  the  study  of  the  chief  controver- 
sialists may  be  approached. 

In  the  Vindiciae  contra  Tyrannos  and  the  Theories 
Franco-Oallia  are  to  be  found  the  ideas  at  the  %g}°fs^^'^^ 
bottom  of  all  theories  of  popular  rights  until  the 
eighteenth  century.  The  doctrine  of  an  original 
compact  appears  full-blown  in  the  Vindiciae,  although 
it  is  worthy  of  remark  that  the  compact  between 
King  and  people  is  here  regarded  as  not  the  first,  but 
the  second  contract  involved  in  the  institution  of  civil 
society.  The  first  compact  is  that  between  God  on 
the  one  hand  and  King  and  people  on  the  other, 
as  contracting  parties ;  this  was  discarded  by  later 
writers.  The  second  compact  is  the  ordinary  con- 
tract of  government,  and  is  identical  with  that  of 
Hooker  or  Locke.  From  it  are  drawn  the  usual  proofs 
that  the  right  of  resistance  is  vested  in  the  people 
and  may  be  exercised  upon  a  breach  of  the  contract 
by  the  sovereign.  This  compact  may  be  express  or 
tacit,  but  it  is  inviolable  and  unchangeable  in  its 
terms ;  no  oath  or  consent  of  either  party  or  of 
both  can  abrogate  it\    The  basis  of  the  argument 

1  "  Inter  regem  et  populum  mutua  obligatio  est,  quae  sive 
Civilia  sive  Naturalis  tantum  sit,  sive  tacita,  sive  verbis  concepta, 


114    HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


throughout  the  book  is  the  principle  of  utility^ 
It  is  contended,  just  as  in  the  manner  of  Locke,  that 
the  King  can  have  no  power  over  either  the  life  or 
the  property  of  his  subjects,  for  it  is  contrary  to  the 
principle  of  utility  for  men  to  give  power  over  their 
life  or  property  into  the  hands  of  another^.  For 
such  a  purpose  men,  who  are  naturally  free,  would 
never  have  set  up  a  King.  There  are  the  very  same 
erroneous  beliefs  in  the  artificial  nature  of  government, 
and  in  the  possibility  of  limiting  the  'sovereign,'  which 
Locke  was  afterwards  to  render  famous.  The  author 
shares  with  the  great  Whig  philosopher  the  inability 
to  see  that  in  any  developed  state  there  must  exist 
some  ultimate  supreme  authority,  to  whose  action  no 
legal  limits  can  be  affixed.  Both  Locke  and  Languet 
think  they  can  "  put  a  hook  into  the  nose  "  of  the 
Leviathan^  The  law  is  for  them  endowed  with 
Divine  Right,  eternal  and  immutable,  the  breath  of 

nuUo  pacto  tolli,  nuUo  jure  violari,  nuUo  vi  rescindi  potest." 
Vindiciae  contra  Tyrannos,  147. 

1  "  Hie  considerandum  est  impiimis  certissimum  totius  huiusce 
disputationis  fundamentum,  quo  reges  utilitatis  publicae  causa 
constitutos  fuisse  statuimus.  Eo  enim  posito  tota  lis  finita  est." 
Ibid.  112.  The  author  repeatedly  has  recourse  to  the  principle  of 
utility  as  the  final  proof  of  his  position. 
Ibid.  112  sqq. 

'  It  is  hard  to  overestimate  the  resemblance  between  the  ideas 
of  Locke  and  the  author  of  the  Vindiciae,  e.g.  "  Primum  sane 
palam  est,  homines  natura  liheros,  servitutis  impatientes  et  ad 
imperandum  magis,  quam  ad  parendum  natos,  non  nisi  magnae 
cuiusdam  utilitatis  caussa  imperium  alienum  ultro  elegisse,  et  suae 
quasi  naturae  legi,  ut  alienam  ferrent,  renunciasse."  Vindiciae 
contra  Tyrannos,  98.  The  question  as  to  whether  the  Vindiciae 
should  be  attributed  to  Languet  or  Du  Plessis  Mornay  need  not 
be  here  discussed. 


HENRY  OB'  NAVARRE  AND  THE  SALIC  LAW  115 


God  rather  than  man,  controlling  sovereign  and  subject 
alike'.  This  of  course  is  to  miss  the  conception  of 
sovereignty,  for  the  argument  will  apply  to  any  form 
of  government.  Locke  saw  and  boldly  admitted, 
that  his  theory  was  as  fatal  to  Parliamentary  om- 
nipotence, as  it  was  to  royal  prerogative,  but  the 
author  of  the  Vindiciae  appears  to  confine  his  views 
to  kings. 

In  another  respect  the  author  of  the  Vindiciae  is 
as  curiously  at  one  with  Whig  Englishmen  of  the 
seventeenth  century,  as  he  is  at  variance  with 
modern  feeling.    He  is  emphatic  in  his  rejection  of 

'  "  Rexne,  inquam,  a  lege  an  Lex  a  rege  pendebit?  *  *  *  Itaqueest 
quod  reges  legi  ipsi  pareant,  eamque  tamquam  reginam  agnoscant. 

 Quia  vero  ambigat,  quin  legi,  quam  regi  parere,  id  est,  homini 

utilius  et  bonestius  sit?  Lex  est  boni  regis  anima;  per  banc 
mo  vet  sentit  vivit  Rex  Legis  organum,  et  quasi  corpus,  per  quod 
ilia  suas  vires  exerit,  sua  munera  obit,  sua  sensa  eloquitur. 
Animae  vero,  quam  corpori,  parere,  justius  est.  Lex  est  multorum 
prudentum  in  unum  collecta  ratio  et  sapientia.  Plures  autem 
oculatiores  et  perspicaciores  sunt,  quam  unus.  Tutius  itaque  est 
Legem,  quam  hominem, quantumuisperspicacem, ducem sequi.  Lex 
est  ratio  sive  mens,  ab  omni  perturbatione  vacua,  non  ira,  non  cupi- 
ditate,  non  odio,  non  studio  mouetur,  non  precibus,  non  minis 
flectitur.  Homo  contra,  quantumuis  rationis  particeps  sit,  ira, 
vindicta,  aliove  subinde  appetitu  vincitur  rapiturque,  et  ita  variis 
affectibus  perturbatur,  ut  sui  ipse  compos  nou  sit :  nempe,  quia 
ex  appetitu  et  ratione  constat,  quin  hie  interdum  vincat,  fieri 
nequit.  *  *  *  Denique  lex  est  mens,  vel  potius  mentium  congruata 
multitude :  mens  vero  diuinae  aurae  particula,  ut  qui  legi  paret, 
Deo  parere,  Deumque  arbitrum  quodammodo  facere  videatur. 
Contra  vero,  quia  homo  ex  mente  divina,  et  anima  ilia  belluina 
constans,  sibi  saepe  non  constat,  saepe  dementat,  et  insanit :  cum 
vero  ita  afficitur  non  jam  homo  sed  bellua  est;  qui  Regi  parere 
mavult,  quam  legi,  belluae  quam  Dei  imperium  malle  videatur." 
Vindiciae  contra  Tyrannos,  103. 

8—2 


116    HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


the  right  of  private  individuals  to  resist  the  prince 
on  any  pretence  whatsoever^  Passive  obedience 
is  their  duty,  prayers  and  tears  their  one  resource. 
Only  to  corporate  bodies,  integral  parts  of  the  king- 
dom, does  the  Vindiciae  grant  the  right  of  resistance. 
To  private  individuals  Christ's  patience  is  held  up 
as  an  example  ;  and  the  precedents  of  tyrannicide  in 
the  Old  Testament  are  explained  away,  as  the  result 
of  direct  Divine  inspiration.  Anyhow,  the  view  is 
closely  parallel  to  the  English  doctrine,  that  resist- 
ance is  unjustifiable  on  the  part  of  private  persons, 
but  lawful,  when  commanded  by  the  "  inferior  magis- 
trate." Probably  the  doctrine  is  a  relic  of  feudal 
theory.  Its  appearance  in  Huguenot  theory,  with 
its  strange  exaltation  of  municipal  and  provincial 
authority,  seems  to  carry  us  back  to  the  days  of 
provincial  sovereignty  and  semi-sovereign  covimunes. 
Certainly  under  any  form  of  government  great  dangers 
would  arise,  if  the  rights  ascribed  by  '  Brutus '  to  the 
municipal  organizations  were  admitted.  His  theory 
would  reduce  the  State  to  a  confederation  of  semi- 
independent  bodies  and  would  give  rise  to  scenes 
like  those  so  vividly  depicted  in  Mr  Chesterton's 
Napoleon  of  Notting  Hill.  It  would  be  quite  in 
accordance  with  the  doctrine,  if  the  London  County 
Council  were  to  direct  an  insurrection  in  favour  of 

1  Vindiciae  contra  Tyrannos,  65  sqq.,  178  sqq.  No  supporter 
of  Passive  Obedience  could  be  more  emphatic  in  his  denunciation 
of  any  general  right  of  insurrection  than  is  this  upholder  of 
popular  liberty.  If  the  aristocracy  lend  their  support  to  a  tyrant, 
it  is  by  God's  command,  and  the  only  lawful  weapon  is  prayer. 
This  notion  is  of  course  exactly  similar  to  the  royalist  contention, 
that  kings  are  frequently  "given  in  wrath." 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  117 


the  principle  of  betterment,  or  the  Leicester  Board 
of  Guardians  to  organize  rebellion  against  the  Vac- 
cination Statutes.  There  would  be  less  unity,  but 
greater  freedom. 

There  are  some  points  of  similarity  to  Papal 
theory  in  this  book.  God  is  the  true  king,  and 
therefore  must  be  supported  against  the  earthly 
king,  who  is  merely  God's  vassal.  Just  as  a  single 
city  of  the  empire  would  be  within  its  rights  in 
supporting  a  duly  elected  Emperor  against  a  usurper, 
so  a  city  of  France  may  support  God  against  a  king\ 
Moreover,  kings  hold  their  dignity  by  Divine  right, 
therefore  they  are  amenable  to  God's  authority,  and 
in  support  of  God's  truth  they  may  be  resisted^ 
The  author  argues  that  if  the  maxim  Nullum  tempus 
occurrit  regi  be  true,  it  is  a  fortiori  evident  that  no 
prescription  can  touch  the  inalienable  sovereignty  of 
the  people*.    Indeed  the  notion  that  sovereignty  is 

1  Vindiciae  contra  Tyrannos,  57  sqq.  ^  Ibid.  Qu.  1. 

'  Vindiciae  contra  Tyrannos,  96.  The  following  passage,  sum- 
ming up  the  whole  argument,  may  be  quoted:  "In  summa,  ut  huuc 
tandem  tractatuinconcludamus,  principeseliguntur  aDeo,  constitu- 
untur  a  populo.  Ut  singuli  principes  inferiores  sunt ;  ita  universi, 
et  qui  universes  repraesentant,  regni  ofiiciarii,  priucipe  superiores 
sunt.  In  constituendo  principe  iutervenit  foedus  inter  ipsum  et 
populum,  tacitum,  expressum,  naturale,  vel  etiam  civile,  ut  bene 
imperanti  bene  pareatur,  ut  reipublicae  inpervienti  onines  in- 

serviant  Huius  vero  foederis  seu  pacti  regni  officiarii  vindices 

et  custodes  sunt.  Qui  hoc  pactum  perfide  et  pervicaciter  violat, 
is  vere  exercitio  tyrannus  est.  Itaque  regni  officiarii  ipsum  et 
secundum  leges  judicare,  et  renitentem  vi  coercere,  si  alias  non 
possunt,  ex  officio  tenentur.  Hi  duorum  generum  sunt.  Qui 
regni  universi  tutelam  susceperuut,  quales  Comes  stabuli, 
Mareschalli,  Patricii,  Palatini  et  caeteri  singuli  per  se  caeteris 


118    HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


y  inalienable  finds  expression  on  all  sides,  whether 
the  doctrine  advocated  be  the  ultimate  authority  of 
Pope,  of  King,  or  of  people.  Nor  is  this  surprising. 
Practical  necessity  rendered  it  essential  for  each 
side  to  insist  much  upon  the  doctrine.  For  neither 
party  could  shew  such  an  unbroken  series  of  pre- 
cedents, that  they  could  make  their  position  secure 
without  asserting  that,  while  examples  might  support 
their  own  view,  precedents  against  them  will  avail 
nothing. 

Hotman's  The  Franco-Gallia  of  Hotman  is  a  work  of  a 
Gallia:  different  order.  It  is  a  purely  historical  argument  to 
prove  that  the  Frankish  kingdom  was,  in  the  earliest 
stages  of  its  development,  a  limited  monarchy.  The 
inference  is  that  the  present  autocratic  power  of  the 
Crown  is  an  usurpation  and  may  justly  be  abolished 
in  favour  of  a  return  to  the  old  state  of  things. 
The  notion  that  governs  the  whole  course  of  the 
argument,  is  the  same  as  that  held  by  English  writers 
of  all  schools  in  the  next  century.  Constitutional 
arrangements,  whether  they  consist  in  the  sovereign 
rights  of  the  Crown  or  in  the  power  of  the  people,  are 
believed  to  be  unchangeable,  a  '  fundamental  law ' 
which  no  lapse  of  time  or  developement  of  circum- 
stances can  abrogate.  Thus  the  primitive  system 
of  government,  whatever  it  be,  is  the  only  rightful 

conniventibus  aut  colludentibus,  tyrannum  coercere  debent;  qui 
alicujus  partis,  regionisve,  quales  duces,  marchiones,  comites, 
consules,  naaiores  tyrannidem  tyrannumque  ab  ea  regione  urbeve 
arcere  jure  suo  possunt.  Porro  singuli  sive  privati  adversus 
tyraanos  exercitio,  gladium  non  stringent;  quia  non  a  singulis, 
sed  ab  universis  constituti  sunt"  {Ibid.  182,  3). 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  119 


one.  Whatever  powers  originally  belonged  to  the 
people,  they  still  possess,  however  long  be  the  period 
since  they  were  recognized  as  effective.  Whatever 
rights  were  vested  in  the  Crown  at  the  beginning,  it 
still  has,  and  no  amount  of  constitutional  develope- 
ment  can  check  them.  Hotman's  conclusions  are 
similar  to  those  of  the  Vindiciae  and  of  Whig  writers. 
To  him  the  King  is  a  mere  official  created  by  the 
people  for  their  own  behoof.  Like  Locke  and 
Rousseau,  he  will  allow  omnipotence  to  no  adminis- 
tration, and  would  apparently,  like  Rousseau,  regard 
all  forms  of  constitution  as  liable  to  change  at  the  will 
of  the  sovereign  people.  The  basis  of  the  argument, 
where  it  is  not  historical,  is  utilitarian,  and  Hotman 
has  frequent  recourse  to  the  maxim  Salus  populi 
suprema  lex\ 

Here,  then,  are  the  same  ideas,  as  were  at  the  Compari- 
bottom  of  English  theories  of  popular  rights  in  the  ^English 
seventeenth  century.     Proclaimed  first  of  all  by  theories  of 

resistance. 

Huguenots,  they  passed  over  to  the  ultramontane 
/Supporters  of  the  League,  when  the  death  of  the 
Duke  of  Alengon  left  Henry  of  Navarre  the  heir 


1  "  Deinde  cum  illi  populi  Regem  sibi  crearent,  (sicuti  et  jam 
prius  dictum  est  et  postea  dicetur)  perabsurdum  est  existimare 
populum  a  Rege  potius,  quam  Regem  a  populo  denomiiiatum"  (58). 

^  It  is  noticeable  that  Hotman  adduces  in  proof  the  limited 
character  of  the  French  monarchy,  the  admitted  fact  that  the 
Salic  law  was  unalterable,  and  that  the  treaty  of  Troyes  was 
invalid  for  that  reason.  It  is  curious  how  completely  this  weak 
point  in  their  position  escaped  the  notice  of  most  supporters 
of  the  Divine  Right  of  Kings.  In  one  and  the  same  breath  they 
assert  that  the  succession  is  fixed  by  a  fundamental  law,  and 
that  the  king  is  absolutely  sovereign. 


120    HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


to  the  French  Crown.    Henceforward  they  become 
identified  with  Papal  pretensions.   The  great  treatise 
of  Barclay,  De  Regno,  is  directed  against  Buchanan, 
Brutus,  and  Boucher,  the  Scotch,  the  Huguenot,  and 
the  Papalist  opponents  of  the  rights  of  the  Crown 
and  of  the  inviolability  of  the  Salic  law^ 
Theory  of       It  is  now,  in  the  later  years  of  Henry  III.  and  the 
^ightof    earlier  of  his  successors,  that  there  appears  a  well- 
Kings.      defined  theory  of  the  French  monarchy.  Against 
the   Papal  claims  to  interfere  with  the  internal 
politics  of  France  and  to  alter  the  succession  as 
^  by  law  established,  the  Divine  Right  of  Kings  and 
the  fundamental  character  of  the  Salic  law  are 
emphatically  asserted. 
Similarity       The  main  arguments  are  similar  to  those  em- 
^doctrim^  ployed  by  English  controversialists.     Kings  are  of 
Divine  appointment,  all  resistance  to  them  is  there- 
fore sin^   The  Pope  has  not  and  never  had  authority 
to  depose  princes^     Since  the  King's  rights  come 
directly  from  God,  the  Pope  can  have  no  power  to 
take  away  what  he  never  granted^    The  deposition 
of  Childeric  was  merely  the  formal  ratification  of  a 
change,  that  had  long  ago  taken  place  and  affected 
the  name,  not  the  reality  of  kingship.     It  was 
effected  with  the  consent,  not  by  the  authority  of 
the  Pope.    Perhaps  the  deposition  was  not  quite 

^  For  a  complete  account  of  Huguenot  and  League  politics  see 
Armstrong,  The  Political  Theory  of  the  Huguenots  (Eng.  Hist. 
Rev.  IV.  13)  and  The  French  Wars  of  Religion. 

2  Barclay,  Be  Regno,  113. 

5  E.g.  Toussaint  Berchet,  Pium,  Consilium,  Pars  i. 
*  Berchet  (Goldast,  ui.  163). 


HENEY  OF  NAVARRE  AND  THE  SALIC  LAW  121 


justifiable  and  were  better  forgotten  ;  it  was  a  case  of 
doing  a  little  wrong,  that  a  great  right  might  results 
The  instances  of  royal  repudiation  of  Papal  inter- 
ference are  duly  recorded ;  and  the  usual  Scriptural 
passages  and  illustrations  are  brought  into  play^ 
The  position  of  the  Emperor  in  regard  to  the  Pope 
is  affirmed  to  be  one  of  superiority.  This  is  an 
important  element  in  the  controversy ;  for  the 
Carolingian  monarchs  are  regarded  as  kings  of 
France.  The  translation  of  the  Empire  is  thus  in- 
vested with  significance,  from  the  French,  as  from 
the  Imperialist  standpoint,  and  the  treatment  of 
Julian  by  his  subjects  receives,  as  usual,  its  meed  of 
attention^  It  is  not  easy  to  single  out  any  one 
name  as  pre-eminent,  in  the  case  of  a  doctrine  so 
widespi-ead.  Yet  the  fact  that  the  theory  of  the 
Divine  Right  of  Kings  was  in  its  origin  a  weapon  of 
anti-papal  controversy,  is  made  plain  by  the  treatise 
of  Berchet  in  favour  of  Henry  IV.  and  comes  out  in 
the  collection  of  Gallican  writings  made  by  Pithou*. 

Special  points,  for  comparison  with  English  theory,  Foints  of 
may  be  indicated.    In  the  first  place  comes  the  ^^tweaT 
difficulty  (before  alluded  to)  inherent  in  the  cii'cum-  English 
stances  of  French  Catholic  writers.     Barclay  and  French 
others  are  clearly  hampered  by  the  necessity  of 

1  Masson,  Responsio  in  Franco-Galliam,  126. 

^  The  following  is  a  specimen  of  the  mode  of  argument :  "Nec 
enim  solum  propter  iram,  id  est  metu  poenae,  illis  [regibus]  obedien- 
dum  est,  sed  propter  conscientiam,  quia  nimirum  omnes  scire 
oportet,  id  est  divina  voluntate  et  constitutione  fieri  debet." 
Servin  (Goldast,  iii.  200). 

^  Barclay,  De  Potestate  Papae  (Goldast,  iii.  635). 

*  Les  Libertez  de  I'Eglise  Gallicane. 


122    HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


admitting  the  spiritual  claims  of  the  Pope  and  his  title 
to  the  obedience  of  the  clergy.  Barclay  is  unable  to 
take  the  same  line  as  Imperialist  or  English  writers 
and  to  affirm  the  absolute  necessity  of  unity  in  the 
sovereign  authority.  He  is  content  to  admit  that 
the  Papal  and  Regal  power  are  equal,  and  must 
respect  one  another'.  At  bottom  he  holds  the  notion, 
y^lso  held  by  Presbyterians,  that  Church  and  State  are 
two  separate  kingdoms,  each  a  'societas  perfecta.' 
He  will  allow  no  exemptions  to  the  clergy  from  the 
operation  of  the  ordinary  law,  and  even  hints  a  wish 
that  excommunication  should  be  unaccompanied  by 
civil  disabilities  I 

Other  writers,  such  as  Du  Moulin'  and  Servin^ 
are  found  arguing  like  Ockham  or  Marsiglio,  that 
Christ's  kingdom  is  not  of  this  world,  and  that  the 
whole  doctrine  of  Papal  sovereignty  is  based  upon  a 
fallacy.  But  all  alike  are  clear,  that  the  prince  is  to 
be  obeyed,  although  he  be  excommunicate  or  a 
heretic.  All  affirm  that  kings  are  accountable  to  God 
alone,  and  above  the  restraints  of  civil  law ;  only 
natural  law  can  lay  commands  upon  a  king,  says 
Serving  All  are  agreed  that  subjects  must  obey 
for  conscience'  sake,  and  not  merely  for  wrath. 
1592.  Servin  also  has  a  lengthy  argument  to  prove 
that  coronation  and  unction  are  mere  ceremonies 
and  no  essential  part  of  the  regality,  and  that 
the  coronation  oath  gives  the  people  no  rights 

1  Barclay,  Be  Potestate  Papae  (Goldast,  iii.  645). 

2  Ibid.  c.  XXXIV.  3  Goldast,  iii.  63.  •*  Ibid.  241. 

^  His  argument  is  strange;  the  Pope  is  solutus  legibus,  therefore 
a  fortiori  the  king  is  also.    Servin,  Vindiciae  (Goldast,  iii.  197). 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  123 


against  him.  It  is  a  pious  custom  only;  it  will 
not  affect  Henry's  authority,  though  the  Archbishop 
of  Rheims  refuse  to  crown  him,  as  a  heretic'. 

In  regard  to  the  Salic  law  more  than  one  line  The  Salic 
is  taken.  Du  Moulin  finds  in  it  evidence  of  the 
perfection  of  the  French  monarchy,  as  founded  on 
the  model  of  the  Davidic  kingdom^  Bodin  seeks  a 
philosophical  justification  for  it  as  the  ideal  mode  of 
succession  ^  Most  writers  content  themselves  with 
the  declaration  that  the  custom  is  a  fundamental 
law  and  may  not  be  violated  by  the  King.  They 
do  not,  as  a  rule,  lay  claim  to  any  special  Divine 
sanction  for  it,  but  declare  that  the  law  of  succession 
in  all  kingdoms  is  of  merely  human  origin;  obedience 
to  the  lawful  successor  is  a  Divine  ordinance*.  The 
Apologia  GathoUca  is  clearest  in  its  exposition  of 
the  point.  There  can  be  little  doubt,  that  the  stress 
necessarily  laid  on  so  plainly  artificial  a  rule  as  that 
of  the  Salic  law,  gives  to  the  French  theory  a  far 
more  legal  aspect  than  had  the  English.  Past 

'  Goldast,  III.  209  sqq.  Cf.  also  Apologia  Catholica,  100  sqq. 
Bodin  takes  a  similar  view,  supporting  it  by  the  maxim  The  king 
never  dies.  This  aphorism,  as  a  proof  of  inherent  right,  is  a 
favourite  argument  of  French,  as  of  English  writers ;  it  is  the 
most  effectual  way  of  disposing  of  any  claims,  that  kingship  is 
elective  or  founded  on  compact. 

'  Du  Moulin,  De  Monarchia  Fra7ic07-um  (Goldast,  iii.  51). 

'  Bodin,  Dc  la  Bepublique,  vi.  5. 

*  "  Be  jure  divino  est  servare  veram  fidem  et  religionem;  de  jure 
autem  huviano  est,  quod  hunc  aut  ilium  habevius  regem."  Barclay 
quotes  these  words  from  Bellarmine,  and  says  that  he  ought  to  have 
added,  "Ubi  hunc  vel  ilium  regem  semel  habeamus,  de  jure  divino 
est,  ut  ei  in  civilibus  causis  cum  omni  honore  et  reverentia  pare- 
amus."    De  Potestate  Papae  (Goldast,  iii.  659). 


124    HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


struggles  and  present  necessities  alike  rendered 
necessary  this  emphatic  assertion  of  the  binding 
character  of  the  Salic  law.  Not  only  was  it  the 
ground  of  Henry's  claim,  but  it  was  the  source  of 
the  independence  of  the  French  monarchy.  For 
Edward  III.  was  undoubted  heir  to  the  French 
Crown,  had  there  been  no  such  rule.  Thus  the 
sentiment  in  its  favour  had  to  strengthen  it  every 
feeling  of  patriotic  pride  at  the  successful  issue  of 
the  Hundred  Years'  War^  It  is  a  commonplace 
with  French  writers  that  the  treaty  of  Troyes  was 
invalid,  for  it  gave  to  Henry  V.  and  his  heirs  the 
reversion  of  the  Crown,  and  a  treaty  to  violate 
the  Salic  law  is  void^.  The  vividness  with  which 
men  realized  the  distinctive  character  of  the  rule 
of  succession,  as  giving  to  the  French  monarchy  a 
perfection  lacking  to  other  kingdoms,  made  it  the 
more  impossible  for  them  to  claim  universality  for  so 
peculiar  a  system.  There  is  no  such  attempt  as  that 
made  by  Filmer,  to  seek  for  hereditary  monarchy 

1  Du  Moulin  thus  describes  the  close  of  the  Hundred  Years' 
War:  "Tandem  vero  Angli  spe  sua  frustrati,  a  lege  antiquissima 
Salica  dejecti  sunt."    Goldast,  iii.  51. 

^  Servin,  whose  main  source  of  iuspiration  is  hatred  of 
Spain,  declares  that  even  if  the  League  could  make  good  its  point, 
there  would  be  no  advantage  gained  by  Spain,  for  England's 
claims  would  have  been  valid,  if  the  Salic  law  were  not  binding. 
"  Sed  ista  diceutes  non  animadverterunt  se  non  tarn  Hispaniam  et 
Guisianam  causam,  quam  Anglicam  defendere"  (Goldast,  iii.  206). 
It  was  no  wonder  that  the  Salic  law  awakened  such  passionate 
enthusiasm  ;  for  if  the  Hundred  Years'  War  be  taken  into  account, 
it  seems  true  to  say  that  it  was  the  salvation  of  France.  The 
claim  of  Edward  III.  was  far  better  than  that  put  forward  by 
Philip  II.  for  himself  or  for  his  daughter. 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  125 


a  foundation  in  the  natui-al  constitution  of  society. 
It  is  of  Niinrod,  rather  than  Adam  that  we  hear  as 
the  founder  of  kingship.  Certainly  we  come  across 
comparisons  of  a  kingdom  to  a  family,  and  of  kings 
to  fathers.  But  they  are  never  the  basis  of  the 
theory,  as  in  the  Patriarcha  or  The  Rehearsal.  If 
agnatic  kinship  had  been  regarded  as  primitive  or 
universal,  there  would  have  been  stronger  grounds 
for  a  French  patriarchal  theory  of  kingship,  than 
there  were  for  the  English.  But  it  does  not  appear 
that  the  possibility  of  such  a  theory  ever  suggested 
itself.  Besides,  it  would  not  have  been  easy  to 
derive  the  doctrine  of  the  French  succession  from 
the  common  rules  of  inheritance.  Henry  IV.  was 
not  heir  of  Henry  III.  at  private  law ;  and  much 
pains  is  taken  by  the  author  of  the  Apologia  Catho- 
lica  to  demonstrate  that,  although  the  Bourbon 
prince  was  too  distantly  connected  with  the  Valois 
to  inherit  theii'  private  property,  he  was  yet  the 
lawful  heir  to  the  throned  The  Crown  is  regarded  as 
something  different  in  its  nature  from  mere  property; 
and  a  peculiar  custom  is  needful  to  regulate  the 
succession  to  the  mystical  position  of  a  king.  Bodin 
is  at  pains  to  declare  that  the  King  succeeds  not  by 
right  of  inheritance  or  by  gift  of  God,  but  solely 
through  the  rule  of  law.  It  is  easy  to  see  how 
different  is  this  view  from  the  English  conception  of 
succession,  which  is  always  regarded  as  mysteriously 

1  Apologia  Catholica,  20.  "Hoc  quidein  jus  regni,  inquiunt 
Doctores  nostri,  revera  non  est  hereditarium,  sed  ad  familiam 
pertiuet,  etiamsi  nemo  in  ea  existeret,  qui  succederet  in  defuncti 
bona." 


126     HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


above  positive  law,  founded  by  God  and  Nature,  and 
followed  in  all  rightly  regulated  families. 
Bodin,  De  To  other  French  writers  Bodin  stands  in  some- 
i**  „  what  the  same  relation  as  does  Hobbes  to  the 
1577.  English  supporters  of  Divine  Right.  Nominally 
scientific,  his  treatise  has  really  the  same  practical 
aim  as  those  of  Servin  and  Berchet.  All  his  acute- 
ness  and  philosophical  grasp  of  the  nature  of  govern- 
ment are  directed  to  one  end,  that  of  securing  the 
Crown  to  the  next  heir,  Henry  of  Navarre.  More 
clearly  perhaps  than  any  previous  writer  French  or 
English  does  he  realize  the  nature  of  sovereignty  \ 
Of  the  conception  of  a  'mixed'  or  limited  monarchy 
he  is  as  contemptuous  as  Hobbes  or  Filmer  or 
Austin".  Quite  in  the  manner  of  the  last,  he  de- 
scribes the  notes  of  sovereignty,  and  defines  law 
as  a  command  of  the  sovereign  generally  binding. 
Sovereignty  he  declares  to  be  indivisible  and  in- 
alienable, and  upon  the  question  of  customary  law 
comes  to  conclusions  similar  to  those  of  Austin'. 

1  De  la  Republique,  i.  8,  10. 

2  Ibid.  II.  1.  Speaking  on  a  'mixed  form  of  government'  he 
says : — "  Je  respous  qu'il  ne  s'en  est  jamais  trouud,  et  qu'il  ne  se  peut 
faire  ny  mesmes  imaginer,  attendu  que  les  marques  de  souverainet^ 
sont  indivisibles."    p.  263. 

3  "  La  coustume  prend  sa  force  peu  a  peu,  et  par  longues  ann6es 
d'un  commun  consentement  de  tous  ou  de  la  plus  part ;  mais  la 
ley  sort  en  un  moment  et  prend  sa  vigueur  de  celuy  qui  a  puissance 
de  commander  k  tous;  la  coustume  se  coule  doucement  et  sans 
force ;  la  loy  est  commandee  et  publiee  par  puissance  et  bien 
souvent  contre  le  gr6  des  subjects ;  et  pour  cette  cause  Dion  Chry- 
sostome  compare  la  coustume  au  Roy,  et  la  loy  au  tyran :  dauan- 
tage  la  loy  peut  casser  les  coustumes  et  la  coustume  ne  petit  deroger 
a  la  loy  *  *  *  la  coustume  ne  porta  loyer  ny  peine ;  la  loy  emporte 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  127 


In  depth  and  accuracy  of  thought  his  treatise  far 
surpasses  the  Leviathan,  and  Bodin  escapes  the  pit- 
fall, into  which  Hobbes  fell,  of  seeking  the  origin 
of  sovereignty  in  a  contract.  Even  a  lex  regia  is 
according  to  him  an  impossibility  in  France,  for  the 
people  never  having  possessed  sovereign  authority 
cannot  have  transferred  it  to  the  Crown. 

The  practical  part  of  the  treatise  is  much  the 
same  as  that  of  other  writers.  The  authority  of 
the  Pope  is  repudiated,  although  little  is  said  on  the 
subjects  The  power  of  the  prince  is  asserted  to 
come  from  God,  and  the  usual  texts  are  employed 
to  inculcate  the  duty  of  absolute  non-resistance^ 
Monarchy  is  shewn  to  be  the  best  form  of  govern- 
ment, in  an  argument  of  similar  character  to  that 
of  Ockham^  But  Bodin  is  more  emphatic  in  his 
contention,  that  since  the  members  of  a  "sove- 
reign number"  may  disagree,  sovereignty  should  be 
vested  in  a  single  person*.    Finally,  a  philosophical 

tousiours  loyer  ou  peine,  si  ce  n'est  une  loy  permissiue  qui  leue 
lea  defenses  d'vne  autre  loy:  et,  pour  le  faire  court,  la  coustume 
n'a  force  que  par  souffrance,  et  tant  qu'il  plaist  au  Prince  souuerain, 
qui  pent  faire  une  loy  y  adjoustant  son  homologation.  Et  par 
ainsi  toute  la  force  des  lois  civiles  et  coustumes  gist,  au  pouvoir  du 
Prince  Souverain"  (De  la  Republique,  222). 

1  Ibid.  190  sqq. 

2  "Qui  mesprises  son  Prince  souuerain,  il  mesprise  Dieu  duquel 
il  est  I'image  en  terre."    Ibid.  p.  212. 

^  Ibid.  yi.  4. 

*  De  la  Republique,  p.  968.  "  II  n'est  pas  besoin  d'insister 
beaucoup  pour  monstrer  que  la  monarchie  est  la  plus  seure  [forme 
de  gouvernement],  veu  que  la  famille  qui  est  la  vraye  image  d'yne 
Republique  ne  peut  avoir  qu'vn  chef,  comme  nous  avons  monstr^,  et 
que  toutes  les  loix  de  Nature  nous  guident  k  la  monarchie,  soit  que 


128     HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


justification  is  sought  for  the  rule  of  the  French  suc- 
cession, and  the  Salic  law  is  alleged  to  be  in  harmony 
with  the  teachings  of  nature'. 
Summary.  Thus  it  appears  that  in  the  writings  of  French 
controversialists  there  was  developed  a  theory,  which 
with  slight  modifications  is  identical  with  the  English 
theory  of  the  Divine  Right  of  Kings.  The  essential 
notion  is  that  the  King  owes  his  position  directly  to 
Divine  appointment  and  is  therefore  accountable 
to  God  alone,  and  not  to  the  Pope.  From  this 
naturally  arises  the  sense  of  the  absolute  duty  of 
non-resistance  upon  religious  grounds.  The  King 
is  regarded  as  above  the  restraints  of  positive  law, 
save  in  the  matter  of  the  succession.  This,  like  the 
English  custom  of  hereditary  succession,  is  regarded 
as  a  constitutional  or  '  fundamental '  law,  which  may 
not  be  violated  by  King  or  people  or  both  together. 
In  English  theory  the  notion  appears  as  indefeasible 
hereditary  right,  in  the  French  as  the  inviolability 
of  the  Salic  law.  The  legendary  antiquity  of  the 
latter  further  strengthens  the  sentiment  in  its 
favour,  although  when  Hotman  pointed  out  the 
true  meaning  of  the  passage  supposed  to  prescribe 
the  rule,  Servin  is  content  to  say,  that  whatever  the 
origin  of  the  rule,  it  is  a  custom  of  long  continuance 

nous  regardons  ce  petit  monde  qui  n'a  qu'un  corps,  et  pour  tous 
les  membres  un  seul  chef,  duquel  depend  la  volonte,  le  mouuement, 
et  sentiment,  soit  que  nous  preuons  ce  grand  monde  qui  n'a 
qu'un  Dieu  souuerain ;  soit  que  nous  dressous  nos  yeux  au  ciel 
nous  ne  verrons  qu'un  soleil:  et  jusques  aux  animaux  sociables, 
nous  voyons  qu'ils  ne  peuuent  souffrir  plusieurs  Roys,  plusieurs 
seigneurs,  pour  bons  qu'il  aoyent." 
1  De  la  Repuhlique,  vi.  5. 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  129 


and  may  not  be  broken'.  Bodin  completely  de- 
veloped the  theory  of  sovereignty,  but  the  position 
of  French  writers,  as  loyal  subjects  at  once  of  Pope 
and  King,  renders  many  of  their  utterances  on  this 
subject  less  clear  than  those  of  Englishmen  far 
inferior  in  ability. 

How  far,  then,  was  English  political  thought  influence 
actually  influenced  by  these  writinsfs  ?    It  is  im- 

J  ^  xtpon 

possible  to  say.  It  is  however  plain  that  the  English 
English  theory  of  Divine  Right  was  a  plant  of^'"'"^^' 
indigenous  growth.  However  much  French  writers 
may  have  done  to  influence  English  thought,  or  to 
render  general  a  sentiment  in  favour  of  Divine  Right, 
yet  assuredly  English  theory  did  not  arise  out  of 
French.  On  the  other  hand  the  position  of  England 
as  an  ally  of  Henry  III.  and  Henry  IV.,  the  unpopu- 
larity of  the  Guises  including  Mary  Stuart,  and  the 
hatred  of  the  Spanish  monarchy  and  of  all  schemes 
for  advancing  its  power  would  tend  in  various  ways 
to  attract  English  sympathy  to  the  side  of  those  who 
were  defending  the  French  monarchy  from  Papal 
aggression  and  Spanish  intrigue.  Further,  there  is 
some  evidence  of  direct  influence.  The  treatise  of 
Bodin  in  particular  largely  formed  men's  notions  of 
government  in  the  next  century.  It  was  translated 
into  English  and  made  a  text-book  at  Cambridge. 
There  is  no  question  of  the  great  efifect  of  Bodin's 
writings  upon  those  of  Hobbes  and  Filmer  and 
Leslie ;  and  h"e  is  quoted  by  various  other  writers. 
There  can  hardly  be  any  doubt,  that  the  compara- 
tively thorough  understanding  of  the  doctrine  of 
1  Goldast,  HI.  207. 


130     HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


sovereignty  evinced  by  some  of  the  least  able  among 
English  writers  was  due  to  Bodin  rather  than  to 
Hobbes,  who  was  hated  as  an  '  atheist '  and  despised 
as  a  believer  in  the  original  compact \ 
France  further  source  of  influence  is  to  be  found 

Scotland,  in  the  relations  of  France  to  Scotland.  The  close 
connection  between  the  two  countries  led  to  the 
migration  to  France  of  some  Scotch  Catholics,  who 
would  look  with  unfriendly  eyes  at  the  attempts  of 
the  Presbyterian  leaders  to  dominate  the  politics 
of  their  country,  whether  by  deposing  Mary  Stuart 
or  menacing  her  son.  The  theory  of  popular  govern- 
Apologia  ment  propounded  by  Buchanan  was  met  by  a 
^egibus.    reply  from  Blackwood,  a  Scotsman  settled  in  France. 

Buchanan  was  again  one  of  the  chief  objects  of  attack 
De  Eegno.  in  the  Be  Regno  of  Barclay,  another  Gallicised  Scot. 

That  Barclay  should  have  announced  upon  the  title- 
page  that  his  book  was  a  reply  to  a  Scotch  Pres- 
byterian, a  Huguenot,  and  a  French  Papalist  writer 
is  evidence  of  the  connection  between  the  political 
ideas  of  France  and  Scotland.  This  book  was  dedi- 
cated to  Henry  IV.    But  Barclay  never  forgot  that 

1  It  is  worthy  of  note  that  Bodin  in  more  than  one  place 
expresses  himself  in  the  strongest  terms  on  the  subject  of  the 
sovereignty  being  vested  in  the  English  king.  In  the  coexistence 
of  the  privileges  of  the  English  Parliament  and  of  the  unlimited 
authority  of  the  Crown,  he  finds  evidence  of  his  contention,  that 
conciliar  assemblies,  whatever  their  power  and  antiquity,  are  no 
legal  check  upon  the  '  sovereign.'  From  Elizabeth's  treatment  of 
the  House  of  Commons  in  respect  to  the  succession  he  infers  that 
Parliament  has  no  real  power  to  control  the  action  of  the  Crown. 
La  Republique,  i.  8,  pp.  139  sqq.  "La  souuerainet^  appertient 
pour  le  tout  sans  diuision  aus  Roys  d'Angleterre,  et  les  estats  n'y 
ont  que  voir." 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  131 

he  was  a  Scotsman  and  that  James  I.  needed  to  be 
defended  in  the  exercise  of  his  Divinely  granted 
authority.  Had  it  not  been  for  the  latter  making 
it  a  condition  that  Barclay  should  renounce  Catho- 
licism, he  would  probably  have  returned  to  Scotland, 
there  to  find  a  new  field  for  controversy  in  the  sacred 
cause  of  monarchy'.  But  the  influence  of  both 
Barclay  and  Blackwood  upon  the  mind  of  James  is 
unquestionable,  and  through  this  channel,  if  no  other, 
they  must  have  influenced  English  thought.  Filmer, 
indeed,  singles  them  out  along  with  Heywood  as 
his  chief  forerunners,  and  regards  their  utterances 
as  a  complete  expression  of  the  rights  of  kings. 
Barclay's  treatise  De  Potestate  Papae  was  translated 
into  English  in  1611,  a  proof  that  his  influence  was 
not  confined  to  France.  Thus  there  is  a  chain  of 
connection  between  the  English  and  French  theories 
of  Divine  Right.  French  theory  and  practice  must 
certainly  have  influenced  these  Scotch  writers.  They 
could  hardly  enter  into  the  controversy  against 
'  Brutus '  or  Boucher,  without  taking  account  of 
French  writings  in  support  of  monarchy.  Nor  could 
Scotsmen,  living  in  France,  remain  unaffected  by 
what  was  going  on  around  them  and  by  the  circum- 
stances which  led  to  a  large  body  of  French  Catholics 
supporting  the  Divine  Right  of  Henry  IV.  There 
can  be  no  doubt  that  the  earlier  struggles  of 
Huguenots,  Leaguers,  and  Politiques  all  contributed 
to  the  developement  of  English  political  thought  in 
the  seventeenth  century,  whether  in  the  direction  of 
Divine  Right  or  of  the  original  compact. 

1  Bid.  of  Nat.  Biog.,  iii.  173. 

9—2 


132     HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


Black-  Blackwood's  two  works,  De  Vinculo  Religionis  et 

v>ood.  Jmperii  and  the  Apologia  pro  Regibus,  are  instances 
of  the  double  aspect  of  the  theory.  The  former 
treatise  was  written  in  order  to  emphasize  the  con- 
nection between  the  true  faith  and  the  doctrine  of 
non-resistance.  Its  first  two  parts  published  in 
1575  are  written  to  shew  that  Calvinism  involves 
a  theory  of  resistance  and  is  therefore  false.  The 
book  is  a  protest  from  a  strong  Roman  Catholic 
against  the  clericalism  of  the  Presbyterian  system. 
Exactly  as  Anglican  divines  affirm  the  Papal  claims 
to  be  heretical,  because  they  tend  to  dissolve  the 
bond  between  sovereign  and  subjects,  so  Blackwood 
contends  that  Calvinism  is  proved  to  be  false  by  its 
teaching  of  i-esistance^  He  complains  that  the  new 
system  takes  away  all  freedom  from  states :  whereas 
true  religion  is  ever  the  support  of  government,  and 
forbids  resistance  even  to  tyrants  ^  The  inference 
is  that  religion  is  the  only  security  of  states, — that 
there  will  be  an  end  of  law  and  order  if  false  sects 
are  permitted  to  exist.  It  is  a  sense  of  the  political 
danger  involved  in  toleration  that  prompts  the 
author  to  write.    The  aim  of  most  writers  is  to 

1  "Religio  quae  semper  hucusque  regnorum  conservatrix  fuit, 
nunc  temporum  in  reges  armatur.  Ex  quo  apparet  veram  non 
esse  religionem,  Bed  larvatam  hypocrisim  et  perfidiam  persona 
religionis  indutam,  eo  detestabiliorem,  quo  meliore  se  auctore 
jactitat."    (De  Vinculo,  261.) 

2  "  Quae,  vestram  fidem,  conscientiae  libertas  quae  in  effraeuam 
progressa  licentiam,  nihil  imperio,  nihil  reipublicae,  nihil  mori- 
bus,  nihil  legibus  liberum  reliquit?"  (De  Vinculo,  2&2.)  "Jamne 
religione  perfidiam  velabant  suam?  At  religio  servat  ac  tuetur, 
non  labefactat,  non  evertit  imperia."    (Ibid.  289.) 


HENRV  OF  NAVARRE  AND  THE  SALIC  LAW  133 


inculcate  the  religious  duty  of"  obedience,  that  of 
Blackwood  is  to  assert  the  political  necessity  of 
persecution. 

The  third  part  of  the  book  was  not  published  until 
after  the  assassination  of  Henry  IV.  and  is  notable 
as  containing  a  very  strong  condemnation  of  the 
League.  The  author  is  nearly  heartbroken  to  think 
that  any  Catholic  should  have  borrowed  the  maxims 
of  Protestants.  The  interest  of  this  treatise  is  great, 
for  it  affords  complete  justification  for  the  manner 
in  which  Anglican  divines  identified  Papist  and 
Dissenting  principles  of  governments.  Blackwood 
makes  the  same  identification  from  the  opposite 
point  of  view.  His  argument  is  that  no  true 
Catholic  can  approve  resistance,  therefore  all  who 
profess  to  approve  it  in  defence  of  the  Catholic 
cause  are  in  reality  on  the  side  of  the  Protestants. 
The  Anglican  view  is  that  no  true  Protestant  can 
approve  resistance,  and  therefore  that  those  Dissen- 
ters who  allow  it  in  the  cause  of  Protestantism  are 
Papists  in  disguise. 

The  Apologia  pro  Regihus  is  interesting  in  a 
different  way.  Whether  or  no  it  be  out  of  compli- 
ment to  the  reputation  of  Buchanan,  as  a  classical 
scholar,  the  inspiration  of  the  book  is  largely  clas- 
sicaP.    Although  Scripture  is  sometimes  cited,  the 

1  Blackwood's  position  as  at  once  a  strong  royalist  and  a 
devoted  Papalist  is  remarkable.  In  the  last  part  of  the  Be 
Vinculo  he  extols  the  Pope's  power,  but  avoids  all  reference  to  the 
deposition  of  Childeric  or  any  disputed  case;  he  is  careful  to 
confine  himself  to  the  perfectly  harmless  instances  of  royal 
reverence  for  the  person  of  the  holy  Father.    But  in  the 


134     HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


bulk  of  the  illustrations  and  arguments  are  from 
classical  history  or  philosophy.  Appeals  to  Roman 
law  are  frequent  and  the  secular  tone  of  the  whole 
is  remarkable.  Perhaps  Blackwood  thought  that 
his  former  work  said  enough  upon  the  religious  side. 
Or  it  may  be,  that  the  cause  lay  in  the  position  of 
the  writer  as  a  Roman  Catholic  defending  against 
Presbyterian  subjects  a  King  who  was  known  to  be 
a  heretic.  The  book  is  further  interesting  for  its 
references  to  England,  which  to  Blackwood  as  to 
Bodin,  is  a  clear  instance  of  undiluted  absolutism. 
Certainly  if  the  derided  principle  of  a  mixed 
monarchy  were  proved  to  have  no  force  in  England, 
it  would  hardly  be  thought  to  exist  in  France  or 
Scotland.  Blackwood,  who  is  a  strong  Anglophobist, 
declares  that  neither  in  England  nor  certain  other 
countries  can  the  people  be  admitted  to  share  the 
sovereignty,  even  with  the  consent  of  the  King\ 
He  denies  the  validity  of  Henry  the  Eighth's  testa- 
mentary devolution  of  the  Crown ;  for  the  succession 
descends  by  an  immutable  law  to  the  next  of  kin, 

Apologia  pro  Regibus  his  views  come  out  more  clearly.  He 
cannot  understand  why  Buchanan  should  object  to  the  Pope 
doing  what  he  approves  in  his  own  ministers  (121).  The  depo- 
sition of  Childeric  was  done  not  at  the  bidding,  but  with  the 
consent  of  the  Pope,  and  therefore  implied  no  popular  rights 
against  the  prince  (197).  He  ascribes  sovereignty  to  the  Pope 
and  declares  him  to  be  as  far  superior  to  other  monarchs  as  they  are 
to  their  subjects.  Yet  he  admits  an  ultimate  power  in  the  council 
to  depose  for  heresy.  But  since  this  power  is  never  exercised,  save 
in  cases  of  Papal  heresy,  no  inference  of  popular  sovereignty  can 
be  drawn  from  it.  The  people  are  no  judge  of  truth  (201 — 4). 
1  Apologia,  6. 


HENRY  OF  NAVARRE  AND  THE  SALIC  LAW  135 


not  as  his  father's  heir,  but  as  the  legitimate  ruler 
of  the  kingdom'.  Blackwood's  theory  of  sovereignty 
is  complete  with  this  exception.  Monarchy  may  not 
be  divided  or  shared  in  any  way.  Yet  he  regards 
force  as  the  origin  of  kingship,  a  view  curiously  un- 
like that  of  other  writers,  while  Nimrod  is  clearly 
the  first  kingl  He  is  so  anxious  to  assert  that  the 
king  is  above  the  law,  that  unlike  Justice  Berkeley 
he  denies  that  he  is  lex  loquens.  He  declares  that 
all  laws  only  retain  their  force  through  the  tacit 
assent  of  the  sovereign  at  his  accession^  while  in 
regard  to  local  laws  and  customs  he  approaches  the 
Austinian  maxim,  "  Whatever  the  sovereign  permits, 
he  commands'*." 

'  Apologia,  73  sqq.  "Regea  non  regum  sed  regni  sunt  heredes" 
(112). 

^  Ibid.  ch.  VII.  ^  Ibid.  ch.  xi. 

*  "Neque  tamen  earn  vim  ac  firmitatem  habent,  ut  a  principe 
mutari  non  queant,  cuius  turn  in  leges,  turn  in  homines  potestas 
nulla  ratione  defiuiri  potest"  (Ibid.  110).  Buchanan  desired  a  mixed 
form  of  government,  in  which  the  King  should  have  the  supreme 
executive,  the  judges  interpretative,  the  people  legislative  power. 
Blackwood  ridicules  this,  and  pertinently  asks,  "Non  attendis 
legis  interpretationem  legis  vim  obtinere?"  (ch.  xiii.).  He  shews 
that  there  could  be  no  supreme  power  in  Buchanan's  ideal  state 
with  its  three  ultimate  authorities  independent  of  one  another. 
"Begem  populo  subesse  iubes,  quem  populo  vis  inuito  legem  im- 
ponere.  Populo  summam  rerum  attribuis,  quem  reluctantem  et 
inuitum  regis  imperio  subiicis.  Sed  qui  fieri  potest  ut  idem 
patiatur  et  agat?  idem  dominatur  et  serviat?"  (295).  The  whole 
of  Chapter  xxxiii.  is  an  argument  in  favour  of  monarchy  as  the 
expression  of  the  principle  of  unity  in  all  states.  It  is  noteworthy 
that  he  regards  this  as  the  supreme  effort  of  art,  not  nature ; 
he  apparently  regards  the  family  as  an  artificial  organization. 
He  finds  it  necessary  to  point  out  to  his  opponent  that  all  states 


136     HENRY  OF  NAVARRE  AND  THE  SALIC  LAW 


Previous 
enquiry 
necessary 
to  the  un- 
derstand- 
ing of 
seven- 
teenth 
century 
contro- 
versy. 


This  long  preliminary  investigation  has  shewn 
the  causes  at  work  in  mediaeval  England,  in  the 
conflicts  within  the  Holy  Roman  Empire,  in  the 
French  Wars  of  Religion,  and  in  the  circumstances 
of  the  English  Reformation,  which  contributed  in 
various  ways  to  the  development  of  a  theory  of 
kingship  more  uncompromising,  narrow,  and  abso- 
lutist than  had  yet  been  prevalent  in  England. 

It  is  now  possible  to  approach  the  political 
controversies  of  the  seventeenth  century  with  some 
prospect  of  understanding  why  they  took  the  shape 
they  did.  The  ideas  have  arisen  of  Divine  Right,  of 
a  '  fundamental  law '  of  succession,  of  sovereignty, 
and  on  the  other  hand  of  the  original  compact,  and  of 
the  duty  of  resistance  at  the  bidding  of  the  Church. 
It  remains  to  view  these  notions  welded  into 
harmonious  theories,  to  trace  the  process  by  which 
they  wei'e  superseded,  and  to  estimate  the  practical 
effect  upon  later  ages  of  their  once  having  been 
prevalent. 

contain  some  supreme  authority,  that  the  Roman  or  Athenian 
democracy  or  the  Venetian  oligarchy  ruled  with  exactly  that  '  regal,' 
i.e.  sovereign  power  which  Buchanan  thinks  it  possible  to  eliminate 
from  the  commonwealth  (193). 


CHAPTER  VII 


FROM  JAMES  I.  TO  THE  JACOBITES 

There  were  many  reasons  why  James  I.  should  jamea  I. 
hold  the  doctrine  of  the  Divine  Right  of  Kings  in  "^]fjl.y^j- 
its  strictest  form.  His  claim  to  the  throne  of  Divine 
England  rested  upon  descent  alone ;  barred  by 
two  Acts  of  Parliament,  it  could  only  be  suc- 
cessfully maintained  by  means  of  the  legitimist 
principle.  Further,  it  was  disputed  by  the  Roman 
controversialists,  who  had  not  sufficient  hope  of 
converting  James  to  make  them  love  his  title. 
Doleman's  attack  on  the  hereditary  principle  is 
written  from  the  Papalist  standpoint.  But  it  was  not 
only  from  the  Roman  side  that  the  position  of  James 
was  threatened.  Presbyterianism  in  Scotland,  as 
expounded  by  Knox  or  Buchanan,  and  inwoven  with 
politics  by  Murray  and  Morton,  was  a  system  of 
clericalism  as  much  more  irritating  and  meddlesome, 
as  it  was  stronger  and  more  popular  in  its  basis  than 
that  of  the  Papal  sovereignty.  Even  had  there  been 
no  question  of  the  English  throne,  there  was  enough 
in  the  position  of  a  king,  thwarted  and  insulted  on 
all  hands  by  the  ministers  of  an  upstart  and  narrow 
communion,  to  bring  him  into  approval  of  a  theory. 


138  FROM  JAMES  I.  TO  THE  JACOBITES 


which  asserted  against  Papist  and  Presbyterian  alike 
that  every  soul  without  benefit  of  clergy  is  subject 
to  the  royal  authority,  for  the  secular  power  is  or- 
dained by  God  alone  and  may  not  be  controlled  by 
Pope  or  minister.  Nor  could  the  influences  at  work 
also  in  England  and  France,  which  led  to  the  theo- 
retical exaltation  of  monarchy,  have  been  devoid  of 
effect  upon  the  mind  of  James.  Thus  it  is  no  matter 
for  surprise,  that  at  a  time,  when  the  sons  of  Zeruiah 
were  too  strong  for  him,  and  he  felt  his  authority  a 
mockery  before  the  insolent  representatives  of  eccle- 
siastical bigotry,  James  should  promulgate  with 
logical  completeness  and  grasp  with  the  tenacity  of 
a  narrow,  but  clear-sighted  intellect  the  theory  of 
the  Divine  Right  of  Kings.  In  the  True  Law  of 
Free  Monarchies,  which  saw  the  light  five  years 
1598.  before  the  death  of  Elizabeth,  is  to  be  found  the 
doctrine  of  Divine  Right  complete  in  every  details 
On  his  accession  Parliament  passed  a  statute  which 
purported  not  to  give  James  a  title,  but  merely  to 
declare  his  inherent  rightl  This  would  seem  evi- 
dence that  the  theory  of  Divine  Right  was  by  this 
time  generally  prevalent.  Yet  though,  as  was  shewn 
above,  approaches  had  been  made  to  it  in  more  ways 
than  one,  it  does  not  appear  as  yet  to  have  taken 

'  There  is  an  error  on  this  point  in  the  article  in  the  Dictionary 
of  National  Biography.  There  it  is  stated  by  Gardiner  that  1603 
was  the  date  of  its  appearance.  But  it  was  published  anonymously 
in  1598. 

2  1  Jas.  I.,  c.  1.  See  Appendix  A.  Cf.  also  Coke's  Reports, 
VII.  10b:  "The  king  holdeth  the  kingdom  of  England  by  birth- 
right inherent,  by  descent  from  the  blood  royal,  whereupon 
succession  doth  attend." 


FROM  JAMES  I.  TO  THE  JACOBITES  139 


much  hold  of  the  popular  imagination  or  even  to  incon- 
have  been  fully  gi-asped  by  those  who  professed  to  ""^ 
believe  it.  opinion. 

Evidence  of  this  is  to  be  found  in  Overall's  Con- 
vocation Book.  This  was  avowedly  intended  to  be 
an  authoritative  exposition  of  the  doctrine,  but  it 
exhibits  a  curious  inability  to  understand  what  it 
actually  involved,  and  is  very  different  from  the  per- 
fectly harmonious  system  of  the  royalists  of  the 
Restoration  or  of  James  himself.  The  Canons  are 
emphatic  on  the  Divine  authority  of  de  facto 
governments'.  The  language  of  the  book  on  this 
point  so  greatly  alarmed  the  King  that  he  wrote 
irritably  to  Archbishop  Abbot,  bidding  him  not  to 
meddle  in  matters  too  high  for  him  I  James  was 
justified  in  declaring  that,  should  Philip  of  Spain 
succeed  in  conquering  the  country,  his  right  to  the 
throne  would  be  Divine  on  the  principles  of  the 
Convocation  Book,  and  Englishmen  would  be  pre- 
cluded from  ousting  the  usurper  in  favour  of  the 
lawful  king.  The  compilers  were  so  deeply  imbued 
with  the  root  idea  of  the  theory  of  Divine  Right, 
that  secular  government  is  lawful  without  Papal 
or  clerical  confirmation,  that  they  were  unable  to 
attach  due  importance  to  the  '  organic  details '  of  the 

1  Canons  xxvni — sxxiii. 

*  The  letter  is  printed  in  the  edition  of  the  Convocation  Book 
in  the  Library  of  Anglo-Cathohc  theology.  The  book  was,  on 
account  of  this,  not  published  until  1690.  There  is  a  strange 
inconsistency  in  the  letter  of  James  ;  for  he  complains  of  the 
Canons  as  not  affording  a  justification  of  England  in  assisting  the 
United  Provinces. 


140  FROM  JAMES  I.  TO  THE  JACOBITES 


doctrine,  or  to  distinguish  between  claims  founded 
on  force  and  the  right  of  conquest. 
The  theory  James  on  the  other  hand  met  with  a  rebuflf, 
^generally  when  he  attempted  to  expound  his  views  of  the 
accepted,  inalienable  character  of  sovereignty.  The  irritation 
of  Parliament  at  his  assertion,  that,  since  all  its 
privileges  were  originally  granted  by  the  Crown, 
they  were  liable  to  be  revoked  by  the  same  autho- 
rity, may  be  taken  as  fairly  representing  the  general 
sentiment  at  this  time.  Further,  the  answer  of  Coke 
to  the  King's  request  that  he  might  sit  as  judge 
in  the  courts  of  law,  is  a  precursor  of  the  coming 
breach  between  the  supporters  of  the  sovereign 
rights  of  the  Crown  and  the  upholders  of  the 
Common  Law.  However,  in  Calvin's  case  the 
personal  character  of  allegiance  was  asserted  to 
the  fulls  and  the  decision  of  Bates's  case^  affirm- 
ed the   doctrine   that   no   King   may  materially 

1  The  unanimous  opinion  of  the  judges  decided  that  allegiance 
is  due  by  the  law  of  nature  and  God  and  may  not  be  altered,  and 
is  due  to  the  person  of  the  King,  not  to  his  politic  capacity.  It 
was  greatly  to  exalt  the  position  of  the  King  to  declare  that  the 
mere  fact  of  his  being  King  of  England  and  Scotland  so  united  the 
countries  that  henceforward  no  one  born  in  one  of  them  was  an 
alien  in  the  other.  And  the  language  in  which  this  is  declared 
still  further  exalts  the  Crown:  "Whatsoever  is  due  by  the  law  or 
constitution  of  man  may  be  altered :  but  natural  legiance  or 
obedience  of  the  subject  to  the  sovereign  cannot  be  altered ;  ergo 
natural  legiance  or  obedience  to  the  sovereign  is  not  due  by  the 
law  or  constitution  of  man.  Again,  whatsoever  is  due  by  the  law 
of  nature,  cannot  be  altered,  but  legiance  and  obedience  of  the 
subject  to  the  sovereign  is  due  by  the  law  of  nature;  ergo  it  cannot 
be  altered."    Coke's  Reports,  vii.  25  a. 

2  Prothero's  Statutes,  340—353. 


FROM  JAMES  I.  TO  THE  JACOBITES  141 


diminish  the  rights  of  sovereignty,  therefore  that 
the  statutes  of  Edward  I.  and  Edward  III.  pro- 
hibiting unlimited  customs  did  not  bind  their 
successors. 

Mainwaring's  Sermons  published  in  1628  are 
evidence  at  once  of  the  prevalence  of  the  doctrine 
and  of  its  slow  progress.  The  preacher  asserts  the 
Divine  basis  of  royal  authority  and  the  right  of  the 
King  to  satisfy  his  necessities  as  seems  good  to  him. 
Laud,  however,  thought  the  publication  of  these 
sermons  inexpedient  and  endeavoured  to  prevent  it\ 
"When  the  character  of  Laud's  own  opinions  as  to 
royal  authority  are  taken  into  account,  this  fact  is 
significant  of  the  popular  attitude  on  this  subject. 
As  yet  the  country  would  not  swallow  the  doctrine 
that  was  so  palatable  to  it  during  the  latter 
half  of  the  century.  Not  that  there  was  much 
disloyalty.  Up  to  a  much  later  date  the  nation  as  a 
whole  was  profoundly  loyal  to  the  monarchy.  Biit 
it  was  not  until  extreme  theories  of  popular  rights 
aroused  the  antagonism  of  the  large  class  who  held 
to  the  old  order,  that  counter  theories  of  a  royal 
sovereignty  uncontrolled  by  custom  became  at  all 
widely  prevalent. 

From  the  time  however  that  the  conflict  between  The 
King  and  Parliament  entered  upon  its  acute  stage  ^rotL"info 
there  grew  up  a  passionate  sentiment  of  loyalty  to  popularity 
the  Crown,  which  would  be  satisfied  with  nothing  less  clvu  * 
than  the  doctrine  of  Divine  Right  in  its  extremest 
form.    As  a  popular  force  in  politics  the  theory 


^  See  Gardiner,  History  of  England,  vi.  208,  9. 


142 


FROM  JAMES  I.  TO  THE  JACOBITES 


hardly  exerted  much  influence  until  the  time  of  the 
Long  Parliament.  Henceforward  Divine  Right  be- 
comes the  watchword  of  all  supporters  of  the  rights 
of  the  Crown,  at  least  until  the  Revolution.  The 
most  servile  Parliament  of  Henry  VIII.,  or  that 
which  recognized  with  such  fulsome  redundance  the 
flawless  title  of  James  I.,  would  scarcely  have  sufiered 
the  employment  of  such  terms,  as  those  which  in 
1640  gave  expression  to  the  sentiment  of  the  great 
majority  of  the  clergy  : — 

"  The  most  high  and  sacred  order  of  kings  is  of 
Divine  Right,  being  the  ordinance  of  God  Himself, 
founded  in  the  prime  laws  of  nature,  and  clearly 
established  by  express  texts  both  of  the  Old  and 
New  Testaments.  A  supreme  power  is  given  to 
this  most  excellent  order  by  God  Himself  in  the 
Scripture,  which  is,  that  kings  should  rule  and 
command  in  their  several  dominions  all  persons  of 
what  rank  or  estate  soever,  whether  ecclesiastical  or 
civil.  *  *  *  For  any  person  or  persons  to  set  up, 
maintain  or  avow  in  any  their  said  realms  or  terri- 
tories respective!}'',  under  any  pretence  whatsoever, 
any  independent  coactive  power,  either  papal  or 
popular,  (whether  directly  or  indirectly,)  is  to  under- 
mine their  great  royal  office,  and  cunningly  to  over- 
throw that  most  sacred  ordinance  which  God  Himself 
hath  established ;  and  so  is  treasonable  against  God 
as  well  as  against  the  king.  For  subjects  to  bear 
arms  against  their  kings,  offensive  or  defensive,  upon 
any  pretence  whatsoever,  is  at  least  to  resist  the 
powers  which  are  ordained  of  God ;  and  though 
they  do  not  invade,  but  only  resist,  yet  S.  Paul  tells 


FROM  JAMES  I.  TO  THE  JACOBITES  143 

them  plainly  they  shall  receive  to  themselves 
damnation'." 

It  will  be  observed  that  there  is  no  mention  here 
of  indefeasible  hereditary  right.  None  was  needed. 
So  long  as  Charles  I.  was  King  and  his  right  to  reign 
undisputed,  there  was  no  cause  to  linger  over  any 
question  of  hereditary  right.  Only,  when  the  notion 
is  expressly  rejected  by  an  infiuential  section  of  the 
community,  will  it  become  necessary  to  reaffirm  it.  It 
is  a  truism  that  dogma  never  takes  definite  shape, 
save  as  a  result  of  its  denial  by  some  thinker  or 
leader.  Thus  the  enthusiastic  attachment  to  the 
notion  of  Passive  Obedience  was  due  to  the  Civil 
War  and  to  the  anarchy  and  tyranny  that  followed  it. 

Before  that  time  men  might  well  have  misgivings 
about  the  duty  in  extreme  cases.  But  henceforward 
all  who  had  suffered  through  the  war  entertained  no 
doubt  but  that  obedience  to  the  most  oppressive 
of  regular  authorities  would  lead  to  less  misery 
than  would  resistance.  So  Avith  hereditary  right.  It 
was  the  execution  of  Charles  and  the  exclusion  of 
his  heir  that  led  men  to  dwell  upon  the  distinction 
between  a  de  facto  and  a  de  jure  authority.  The 
logical  mind  of  James  I.  would  have  found  nothing  to 
shock  it  in  royalist  pronouncements  of  this  period. 
The  confusion  apparent  in  Overall's  Convocation 
Book  had  now  disappeared  from  the  popular  mind. 
No  one  now,  whichever  party  he  favours,  but  has 
a  clear  enough  sense  that  it  is  possible  to  assert 
Divine  Right  for  the  lawful  heir  without  predicating 
it  of  an  usurper. 

'  Cardwell's  Synodalia,  i.  389. 


144  FROM  JAMES  I.  TO  THE  JACOBITES 


There  was  now  present  every  condition  necessary 
for  awakening  men  to  the  sharp  distinctions  between 
de  jure  and  de  facto  authority  and  between  passive 
obedience  and  active  resistance  however  slight.  On 
the  one  hand  there  were  the  recollection  of  the  arbi- 
trary rule  of  Charles  I.  and  the  general  hatred  of  the 
methods  of  Strafford  and  the  Star  Chamber.  These 
would  serve  to  keep  men  in  mind  that  a  lawful 
government  might  be  intolerably  oppressive,  and 
that  therefore  complete  or  active  obedience  would 
not  always  be  a  duty.  On  the  other  hand  there 
was  the  existence  of  an  upstart  military  autocracy, 
claiming  to  be  the  inheritor  of  the  secular  traditions 
of  the  English  constitution  and  demanding  universal 
allegiance,  as  though  there  were  no  question  about  the 
legality  of  its  acts.  This  would  sufficiently  ensure 
that  every  royalist  and  every  opponent  of  Cromwell 
and  the  Major-generals  should  realize,  that  an 
usurper  can  have  no  moral  claim  to  obedience,  and 
that  it  may  be  a  sacred  duty  to  restore  the  dispos- 
sessed heir.  Passive  Obedience  and  Indefeasible 
Hereditary  Right  were  no  new  conceptions ;  they 
had  long  been  in  the  air,  and  the  necessity  of  com- 
bating Papal  claims  had  brought  about  a  doctrine  of 
which  they  were  merely  the  logical  expansion.  But 
as  a  force  in  English  politics  they  owe  their  im- 
portance largely  to  the  Civil  War  and  the  successful 
usurpation  of  Cromwell.  The  horror  which  was 
awakened  by  the  execution  of  Charles,  and  the 
melancholy  reverence  which  Eikon  BasiliM  won  for 
the  Martyr,  would  tend  to  deepen  in  men's  minds 
their  sentiment  in  favour  of  royal  power,  as  clothed 


FROM  JAMES  I.  TO  THE  JACOBITES  145 


with  mysterious  sanctity,  and  separated  by  a  gulf 
from  all  other  forms  of  government.  Thus,  while  the 
origin  of  the  theory  of  the  Divine  Right  of  Kings 
is  earlier  and  due  to  other  causes — for  no  real 
additions  are  made  to  the  doctrine  expounded  by 
James, — its  widespread  prevalence  was  certainly 
due  rather  to  the  Civil  War  than  to  any  more 
remote  causes.  It  is  the  sentiment  that  brought 
back  Charles  II.  to  his  father's  throne,  and  finds 
expression  in  the  Act  of  Uniformity  \ 

In  the  Tudor  period  the  doctrine  is  seen  in  the  Three 
making.    It  is  forged  as  a  weapon  in  the  great  con-  oj-"f/jg 
flict  with  ecclesiastical  aggression.    The  character  doctrine. 
given  to  it  by  that  controversy  remained  ever  its  l.  Tteli- 
most  essential  quality.    But  the  theory  of  govern-  l'°^tlenth 
ment  was  developing  at  the  same  time  and  partly  century. 
through  the  same  causes.  In  the  seventeenth  century  2.  PoU- 
the  real  value  of  the  theory  in  the  development  of 
political  thought  appears.    Retaining  still  its  anti-  teenth 
papal  character,  it  yet  exhibits  itself  more  completely, 
as  the  form  in  which  was  expressed  the  discovery 
of  sovereignty.    The  controversies  which  rage  round 
the  origin  of  law  become  now  prominent.    And  the 
supporters  of  the  doctrine  of  Divine  Right  are 
constantly  found  fighting  for  their  contention,  that 
law  cannot  exist  independently  of  some  lawgiver,  and 

*  Declaration  to  be  made  by  schoolmasters  &c. :  "I  A.B.  do 
declare  that  it  is  not  lawful  upon  any  pretence  whatsoever  to  take 
arms  against  the  king,  and  that  I  do  abhor  that  traitorous  position 
of  taking  arms  by  his  authority  against  his  person  or  against  those 
that  are  commissionated  by  him,"  14  Car.  II.  c.  4.  13  Car.  II.  c.  1, 
makes  it  an  offence  to  declare  that  either  or  both  Houses  of 
Parliament  have  any  legislative  power  without  the  king. 

P.  10 


146         FROM  JAMES  I.  TO  THE  JACOBITES 

that  the  ultimate  legislative  authority  in  any  state  is 
necessarily  above  all  positive  law.  The  value  of  the 
theory  as  a  political  force  is  due  not  to  this  purely 
scientific  element,  but  to  the  testimony  it  bears  to  the 
need  of  continuity  in  national  life  and  to  the  para- 
mount importance  to  a  state  of  a  law-abiding  habit. 
It  is  easy  to  deny  the  doctrine.  But  those,  who  do 
this,  should  bear  in  mind  that  the  singularly  orderly 
character  of  English  constitutional  development,  its 
freedom  from  violent  changes,  would  not  have  been 
obtained  but  for  the  influence  of  this  doctrine. 

In  contemplating  the  earlier  stages  of  the  Re- 
formation, we  are  driven  to  regard  with  gratitude 
the  men,  who  alone  made  possible  a  justification  of 
the  position  of  independence  assumed  by  the  English 
monarchy  against  the  Pope.  But  the  Divine  Right 
of  Kings  is  more  than  the  effective  expression  of 
Gallicanism.  It  has  a  purely  political  side,  which 
comes  out  most  strongly  in  the  middle  of  the  seven- 
teenth century.  From  the  writings  of  that  period 
we  learn  how  it  has  stamped  upon  the  English  mind 
the  conception  of  sovereignty,  and  thereby  rendered 
a  service  which  can  hardly  be  overestimated  by  all 
who  value  the  writings  of  John  Austin.  Further,  in 
contemplating  the  Restoration  and  the  period  of  the 
Exclusion  Bill  and  the  Revolution,  we  are  driven  to 
express  the  debt  of  modern  times  to  the  faith,  through 
which  alone  men  weathered  the  storm  of  political 
change  and  achieved  the  ends  of  freedom  and  good 
government  with  less  of  bloodshed  and  anarchy  than 
has  been  the  lot  of  any  other  nation.  This  passionate 
sense  of  the  need  of  continuity  in  national  institutions 


FROM  JAMES  I.  TO  THE  JACOBITES  147 


is  perhaps  the  douiinaut  note  of  the  pamphlets 
and  sermons  which  poured  forth  in  a  dehige,  when 
men  were  debating  the  question  of  a  Popish  successor 
to  Charles  II.,  and  weighing  in  a  balance  the  risks 
of  persecution  and  the  advantages  of  an  unbroken 
succession. 

A  further  impulse  to  enthusiasm  was  afforded  by  The 
the  Exclusion  Bill.  The  controversy,  which  raged  ^^^^'""o" 
round  that  ill-fated  measure,  was  the  source  on  the 
one  hand  of  the  most  emphatic  expressions  of  belief 
in  indefeasible  hereditary  right  and  passive  obedience, 
and  on  the  other  of  the  clearest  exposition  of  the 
theory  of  popular  rights.  Doleman's  pamphlet  was 
reprinted.  The  theory  of  original  compact  and  of 
the  purely  official  character  of  the  kingly  dignity 
was  elaborated ;  while  the  discussion  on  the  position 
of  Julian  the  Apostate  reveals  the  similarity  of  the 
arguments  employed  to  those  of  French  and  Im- 
perialist thinkers,  and  is  evidence  that  the  popular 
party  had  no  fault  to  find  with  the  dialectic  method 
of  their  opponents. 

In  Julian  the  Apostate  Johnson  argues  that  Johnson 
the  inference  commonly  drawn  from  the  obedience  ^^onents. 
of  the  Christians  to  an  unbelieving  Emperor  is 
false,  for  as  a  matter  of  fact  they  did  not  recognize 
his  authority,  and  S.  Gregory  Nazianzen  had  fears 
that  his  father  the  Bishop  would  have  kicked 
the  Emperor  \  To  this  it  is  replied  in  Constantius 
the  Apostate,  that  the  assertions  are  unfounded 
and  are  a  libel  upon  Christians ;  further,  that  if 


1  Johnson's  Wm-ks,  p.  21. 

10—2 


148         FROM  JAMES  I.  TO  THE  JACOBITES 


they  were  true,  it  would  not  affect  the  argument, 
for  Christians  recognized  Constantius  and  obeyed 
him,  although  he  was  an  Arian.  Thus  the  duty  of 
obedience  to  a  heretic  sovereign  was  demonstrated. 
The  acknowledged  dangers  to  be  apprehended  from 
James  lead  men  to  emphasize  the  duty  of  passive 
obedience.  Tears  and  prayers  are  repeatedly  de- 
clared to  be  the  only  lawful  weapons  against  a 
tp"ant.  It  was  felt  that  there  might  ere  long  be 
need  of  them.  The  Doctrine  of  the  Cross,  as  it  is 
called,  is  written  up  with  much  enthusiasm  in  a 
host  of  pamphlets  and  sermons. 
1681.  It  was  shortly  after  this  time  that  Filmer's 

FilfucT^  s 

'Patri-  Patriarcha  was  first  published.  The  work  won  great 
archa.'  ^^^^  deserved  popularity  as  the  ablest  justification  of 
the  extreme  royalist  doctrine.  Filmer  had  the 
acuteness  to  see  that  of  the  two  modes  of  argu- 
ment, that  of  relying  upon  a  medley  of  Scripture 
texts,  forbidding  resistance  and  asserting  Divine 
sanction  for  kingship,  and  that  of  claiming  that 
monarchy  is  in  accordance  with  the  teachings  of 
nature,  the  latter  rested  upon  a  far  more  solid 
basis.  It  is  always  possible  to  explain  away  single 
texts  of  Scripture.  Indeed  no  one  nowadays  but 
knows  that,  when  S.  Paul  and  S.  Peter  enjoined 
obedience  to  established  government  as  a  religious 
duty,  they  were  far  from  considering  the  question 
of  men's  duty  in  extreme  cases,  and  had  no  notion 
of  discussing  the  right  of  insurrection.  Whether 
or  no  Filmer  was  aware  of  this  may  be  doubted. 
Probably  he  was  not,  as  in  another  place  he 
founds  an  elaborate  argument  on  the  thirteenth 


FROM  JAMES  I.  TO  THE  JACOBITES  149 


of  Romans'.  But  he  was  instinctively  conscious 
that  this  was  not  the  best  method  of  establishing 
his  position.  In  his  treatise  the  textual  method 
of  argument  falls  quite  into  the  background  be- 
fore the  prominence  given  to  the  conception  that  Changed 
monarchy  is  founded  in  nature.  The  idea  is  not  ^argument. 
new.  It  was  introduced  with  more  or  less  of  com- 
pleteness by  most  of  the  supporters  of  Divine  Right. 
Indeed  Harrington  alludes  to  it  as  a  recognized 
argument.  But  with  them  it  is  rather  an  illustration 
or  a  figure  of  rhetoric  than  the  basis  of  an  argument. 
Filmer  rests  his  whole  system  upon  it.  He  attempts 
to  find  the  origin  of  kingship  in  the  natural  consti- 
tution of  society,  and  bases  it  neither  on  force  nor  on 
popular  sanction,  but  on  human  nature,  as  formed 
by  the  Creator.  Most  writers  regard  the  fact  that 
kingship  is  founded  by  Divine  ordinance,  as  proved 
by  the  institution  of  the  kingdom  of  Israel  or  by 
isolated  phrases  in  Daniel  or  Proverbs ;  to  this  proof 
they  are  content  to  add  that  kingship  is  indeed 
natural,  as  may  be  seen  in  a  family  or  the  animal 
kingdom  among  geese  or  sheep.  Filmer  on  the  other 
hand  contends  that  kingship  is  natural,  and  that 
therefore  it  must  be  ordained  by  God,  the  author 
of  nature.  His  whole  argument  depends  on  the 
identification  of  the  kingdom  with  the  family,  and 
of  royal  with  paternal  power.  That  the  King  is 
the  father  of  his  people  was  a  metaphor  frequently 
employed  by  writers  in  favour  of  monarchy.  Filmer 
expands  the  metaphor  into  an  argument,  and  founds 
upon   it  the  only  rational  system  of  absolutist 

^  Preface  to  Observations  on  Aristotle, 


150  FROM  JAMES  I.  TO  THE  JACOBITES 


Many  politics.  The  patriarchal  conception  of  society  is  far 
not^malfe'  ^^'^"^  being  of  the  essence  of  the  theory  of  the 
thepatri-  Divine  Right  of  Kings ;  it  is  merely  the  best  argu- 
theory  the  ment  by  which  it  is  supported.  Some  supporters  of 
of^the  theory  scarcely  refer  to  the  idea,  most  however 

doctrine,  do  SO,  but  employ  it  very  loosely,  and  clearly  without 
the  notion  that  it  was  a  far  better  justification  for 
their  opinions  than  the  phrase,  "  By  me  kings  reign, 
and  princes  decree  judgment."  King  James  uses  the 
analogy  avowedly  as  a  metaphor.  Sir  Dudley  Digges 
declares  that  the  King  is  "  without  a  metaphor  the 
father  of  his  people,"  evidence  that  the  comparison 
is  commonly  regarded  as  a  mere  figure  of  speech. 
Like  other  authors  he  regards  the  marriage  tie,  as 
equally  typical  of  the  bond  between  King  and  people, 
and  is  ready  with  the  argument  against  resistance, 
"  What  God  hath  joined,  let  no  man  cut  asunder." 
Sanderson,  like  Bodin,  declares  that  kings  have  more 
powers  than  parents,  and  that  a  monarch  is  "  a 
brother  and  something  more."  Mainwaring  regards 
the  bond  between  King  and  people  as  fourfold,  con- 
sisting of  the  ties  that  bind  (1)  The  Creator  and  the 
Creature,  (2)  Husband  and  Wife,  (3)  Parents  and 
Children,  (4)  Masters  and  Servants'. 

These  are  only  a  few  instances  of  the  general 
view,  which  is  merely  that  allegiance  is  the  strongest 
of  all  bonds  and  includes  all  other  human  ties.  Of  any 
general  patriarchal  theory  of  kingship  there  is  little 
evidence  before  Filmerl    It  is  his  merit  to  have 


1  Religion  and  Allegiance,  3. 

2  S.  Thomas  Aquinas,  who  regards  the  family  as  something 
similar  to  the  kingdom,  is  the  type  of  most  thought.  Sanderson 


FROM  JAMES  I.  TO  THE  JACOBITES  151 


discovered  that  the  common  metaphor  contained 
within  it  the  germ  of  a  system  far  more  substantial 
in  its  basis  than  the  ordinary  hotch-potch  of  quota- 
tions from  Scripture.  The  popularity  of  the  book  is 
further  evidence  that  the  idea  came  to  most  men 
with  the  force  of  a  discovery.  For  its  sole  contribu- 
tion to  the  theory  is  the  careful  elaboration  of  the 
patriarchal  conception  of  kingship.  If  the  notion 
had  previously  been  regarded  as  a  necessary  element 
of  the  doctrine,  it  would  be  hard  to  account  for 
Filmer's  reputation.  Men  clutched  at  the  chance, 
given  them  by  the  Patriarcha,  of  grappling  with 
their  opponents  on  better  terms  than  were  afforded 
by  the  weapons  with  which  they  were  familiar.  At 
the  same  time  Filmer  can  hardly  be  said  to  have 
been  the  discoverer  of  the  conception.  His  book  was 

says  "the  master  or  paterfamilias  is  a  kind  of  petty  monarch 
there"  (Judgment  in  One  View,  p.  106),  and  argues  that  "what 
power  the  master  hath  over  his  servants  for  the  ordering  of  his 
family  no  doubt  the  same  at  the  least,  if  not  much  more,  hath  the 
supreme  magistrate  over  his  subjects  for  the  peace  of  the  Common- 
wealth, the  magistrate  being  Pater  Patrice  as  the  master  is  Pater 
familias"  (p.  108).  And  again,  "A  governor  is  a  brother  too  and 
something  more ;  and  duty  is  charity  too  and  something  more. 
If  then  I  may  not  offend  my  brother,  then  certainly  not  my 
governor"  (p.  112).  Vox  Popidi,  a  pamphlet  against  Spain  of 
1624,  is  an  instance  of  the  loose  way  in  which  the  patriarchal 
power  is  regarded,  even  by  a  writer  who  seems  to  approach  Filmer. 
"Amongst  all  nations  the  rule  of  a  family  or  country  was  conferred 
upon  the  eldest.  Until  there  were  kings  they  were  instead  of  such, 
and  when  there  were  kings,  either  they  were  chosen  out  of  these, 
or  these  were  their  substitutes  in  such  families  and  places  where 
they  resided"  (7).  The  Royal  Charter  granted  unto  Kings  regards 
the  Divine  origin  of  kingship  as  proved  by  the  case  of  Melchisedec, 
who  was  "without  father,  without  mother"  (6). 


152 


FROM  JAMES  I.  TO  THE  JACOBITES 


certainly  the  occasion  of  its  prevalence,  but  so  wide- 
spread a  metaphor  as  that  of  the  King  being  pater 
patriae  is  sure  to  be  pressed  to  its  full  extent  by 
some  writers.    The  arguments  of  Bodin  in  favour  of 
monarchy  and  the  phrases  employed  by  Williams, 
1644.       Bishop  of  Ossory,  in  a  little  pamphlet.  Jura  Magis- 
tratus,  are  an  indication  that  men  were  feeling  their 
way  to  a  system  akin  to  that  of  Filmer^ 
The  con-         The  importance  of  Filmer  in  the  history  of 
theory' of   ^^^^  doctrine  is  indeed  great.    But  he  deserves  to 
Divine      be  remembered,  less  as  the  most  perfect  exponent 
of  the   theory,  than  as  the  herald  of  its  deca- 
dence.    It  is  an  easy  transition  from   the  con- 
ception of  government  as  directly  established  by 
Divine  command  to  the  notion  that,  since  God  is 
the  author  of  nature,  whatever  is  natural  has  His 
sanction.  Yet  the  change  is  great.  For  direct  Divine 
Right  has  been  substituted  a  constructive  theory  of 
Divine  approval.     The  theological  conception  of 
politics  is  giving  way  before  what  may  be  termed 
Transition  the  naturalistic.    In  this  disguised  form  the  theory 
rights.      of  Divine  Right,  as  the  only  possible  justification  for 
any  political  system,  lingers  on  until  with  the  present 
century  the  notion  of  natural  rights  has  fallen  into 
discredit.    In  a  sense  it  may  be  said,  that  Filmer 
paved  the  way  not  only  for  Locke,  but  for  Rousseau. 
It  is  plain  that  the  theory  of  natural  rights,  whether 
vested  in  King  or  people,  is  the  next  stage  of 

1  Jura  Magistratus,  15:  "  Every  master  of  a  family  that  ruleth 
his  own  household  is  a  petite  king";  and  again,  "A  kingdom  is 
nothing  else  but  a  great  family  where  the  king  hath  paternal 
power,"  22. 


FROM  JAMES  I.  TO  THE  JACOBITES 


153 


developement  to  the  conception  that  all  political 
systems  must  find  their  sanction  in  the  Bible,  as  the 
complete  Revelation  of  the  Divine  Will.  Whether 
the  theory  be  one  of  Divine  Right  in  the  older  sense, 
or  of  natural  rights  as  a  proof  of  Divine  sanction,  the 
motives  which  lead  men  to  adopt  it  are  the  same. 
It  is  the  desire  to  find  some  immutable  basis  for  3lotive  to 
politics  and  to  lift  them  above  considerations  of  mere  'alheoryof 
expediency,  that  prompts  men  to  elaborate  systems  Divine  or 
of  Divine  or  natural  rights.    They  are  haunted  rights. 
with  the  hope  of  finding  a  universal  system,  superior 
to  time  and  circumstance,  untrammelled  by  con- 
siderations of  historical  development  or  national 
idiosyncrasy.     And  to  both  schools,  that  of  the 
believers   in   Divine  right,  whether  of  Pope  or 
Presbytery  or  King,  and  that  of  the  upholders  of 
natural  and  inalienable,  i.e.  Divine  rights  of  nations 
or  individuals,  the  same  objections  apply.  No  system  Fallacies 
of  politics  can  be  immutable.    It  is  impossible  in  ^-^  ^nauiml 
framing  a  doctrine  of  government  to  lay  down  rights. 
eternal  principles,  which  may  never  be  transgressed. 
A  universal  theory  of  the  state  is  a  chimsera,  for 
historical  development  and  national  character  are  the 
most  important  of  all  considerations  in  investigating 
the  laws  of  political  development.    The  arguments, 
with  which  Rurke  encountered  the  system  of  the 
Revolutionary  idealists,  are  equally  applicable  to  the 
theories  of  Bellarmine  on  behalf  of  the  Pope,  or  of 
James  I.  or  Filmer  in  favour  of  monarchy.  The 
theory  of  natural  rights  is  the  old  theory  of  Divine 
Right  disguised. 

Yet  it  was  disguised.    There  is  no  denying  the 


154  FROM  JAMES  I.  TO  THE  JACOBITES 


great  transformation  thought  has  undergone,  when 
controversialists  have  abandoned  the  habit  of  un- 
critically compiling  a  cento  of  Scripture  phrases  for 
arguments.  No  longer  is  the  Bible  regarded  as  the 
sole  source  of  political  theory.  Instead  of  this,  an 
attempt,  however  imperfect,  is  made  to  seek  in  the 
nature  of  man  and  the  necessity  of  human  society  the 
changeless  principles  of  civil  government  and  inviola- 
ble laws  of  political  duty.  Once  the  project  of  finding 
an  imtnutable  system  of  politics  be  granted  as  worthy 
of  undertaking,  it  is  certainly  more  reasonable  to  seek 
it  in  the  teachings  of  nature,  than  in  the  doubtful 
import  of  a  fortuitous  concourse  of  Scripture  texts. 
At  least  it  is  one  step  further  towards  a  utilitarian 
or  a  historical  system  of  politics,  for  nature  certainly 
would  seem  to  approve  the  principle  of  utility,  and  it 
distinctly  indicates  the  importance  of  developement 
according  to  the  law  of  an  organism.  The  first  fact, 
that  utility  is  in  accordance  with  the  law  of  nature, 
was  recognized  by  Locke  and  Sidney,  while  Filmer  has 
certainly  more  of  the  historical  spirit  than  any  of  his 
opponents,  or  than  some  of  his  predecessors,  such  as 
Blackwood.  In  any  case  it  is  the  merit  of  Filmer  to 
have  seen,  that  a  natural  system  of  politics  was  more 
likely  to  prove  well-founded  than  a  purely  theological 
scheme ;  or  rather  to  have  regarded  theology  as  point- 
ing to  nature  as  the  teacher  of  political  philosophy. 
Filmer's  Yet  the  Credit  due  to  him  as  a  political  thinker,  is 
/rwi'f  ^  ""^  clearly  his  as  a  supporter  of  his  own  theory.  His 
really  method  paved  the  way  for  its  overthrow.  The  older 
grmi,  up  ^^q^q  arguing  from  Scripture  texts,  as  direct 
ground.     Divine  injunctions,  had  this  advantage,  that  it  was 


FROM  JAMES  I.  TO  THE  JACOBITES 


155 


impregnable  to  the  assaults  of  criticism,  and  that 
neither  natural  law  nor  the  principle  of  utility  could 
avail  aught  against  it.  In  partially  deserting  the 
old  method  of  argument  Filmer  has  in  reality 
surrendered  the  case  for  Divine  Right.  In  ap- 
pearance his  position  is  far  stronger  than  that  of  his 
predecessors.  The  reason  of  this  is  that  his  argument 
approaches  more  closely  to  those  with  which  we  are 
familiar.  Filmer's  theory  of  Divine  Right  was 
expressed  in  a  syllogism : — 

What  is  natural  to  man  exists  by  Divine  Right. 
Kingship  is  natural  to  man. 

Therefore  Kingship  exists  by  Divine  Right. 
This  is  a  sounder  mode  of  procedure  than  that 
of  collecting  a  few  texts  and  illustrations  from  the 
Bible  and  ignoring  or  emptying  of  their  meaning 
any  that  make  for  the  contrary  view.  Yet  Filmer's 
position  is  far  more  open  to  attack  than  that  of  the 
older  controversialists.  The  verse  "  they  that  resist 
shall  receive  to  themselves  damnation  "  is  apparently 
of  unmistakeable  import,  which  can.  only  be  evaded 
by  sophistry.  No  arguments  from  expediency,  no 
fresh  reading  of  history  could  affect  the  elaborate 
accumulation  of  texts  made  by  Mainwaring  in  support 
of  his  doctrine.  The  only  possible  way  to  meet  him 
was  to  deny  the  interpretation  or  the  applicability 
of  the  passages  quoted.  In  fact,  considerations  of 
utility  or  historical  cii'cumstances  could  not  affect 
the  ordinary  argument  for  Divine  Right.  But 
with  Filmer's  arguments  this  is  not  the  case.  For 
the  whole  question  of  what  constitutes  the  law  of 
nature  is  involved,  and  it  is  easy  to  argue  as  did 


156  FROM  JAMES  I.  TO  THE  JACOBITES 

Locke  for  the  principle  of  utility,  the  instinct  of  self- 
preservation,  as  of  natural  and  therefore  Divine 
origin.  Both  Locke  and  Sidney,  indeed,  elevate  their 
own  principle  of  natural  rights  above  any  considera- 
tions of  temporary  expediency,  and  would  not  allow 
that  the  legislature  in  a  state  is  sovereign,  even 
though  it  were  manifestly  expedient  that  it  should 
be  so.  But  the  principle  of  utility  governs  much  of 
their  thought,  and  they  are  justified  in  regarding 
its  dictates  as  being  every  whit  as  much  a  law  of 
nature,  as  the  necessity  of  obedience  to  government. 
The  theory  of  natural  rights  and  original  compact 
propounded  by  the  Whig  opponents  of  Filmer  is  less 
well-founded  and  more  artificial  than  the  Divine 
Right  of  Kings.  But  the  speculations  of  Locke  and 
Sidney  have  this  of  value,  that  they  recognize  to  some 
extent  the  importance  of  considerations  of  utility  in 
framing  a  practicable  theory  of  politics.  It  is  the 
failure  to  see  this,  not  the  elaboration  of  an  abso- 
lutist system,  that  is  the  real  ground  of  the 
puerilities  of  the  royalist  school.  But  in  appealing 
to  natural  law  Filmer  was  paving  the  way  for  the 
use  of  this  principle  of  utility  to  overthrow  his 
idealist  system.  With  those  of  the  old  school  it  was 
useless  talking  of  utility.  They  regard  the  Bible  as 
containing  in  set  terms  an  emphatic  prohibition  of 
resistance,  and  they  put  this  in  the  forefront  of 
their  argument.  Against  such  a  contention  no 
argument  from  the  inexpediency  of  absolute  non- 
resistance  can  have  any  hope  of  success.  The 
arguments  drawn  from  isolated  texts  seem  to  modem 
readers  the  most  absurd  part  of  the  theory  of  Divine 


FROM  JAMKS  I.  TO  THE  JACOBITES  157 


Right.  They  are  in  reality  the  strength  of  the 
position.  If  the  arguments  were  absurd,  it  was  not 
easy  to  prove  it.  But  for  Filmer  the  Bible  is  no 
mere  storehouse  of  texts,  though  he  will  be  ready  so 
to  employ  it  on  occasion.  It  is  the  one  historical 
document  which  gives  authentic  information  as  to 
the  nature  of  primitive  society.  In  the  early 
chapters  of  Genesis  he  finds  evidence,  that  society  is 
as  old  as  humanity,  that  kingship  is  an  expansion  of 
family  life,  and  that  monarchy  is  the  inalienable 
natural  power  of  the  father.  The  value  of  the 
conception  is  great ;  it  is  far  less  unhistorical  or 
artificial  than  the  Whig  idea  of  the  state,  and 
contains  by  implication  the  pregnant  truth  that  the 
state  is  an  organism,  not  a  machine.  Yet  the 
Divinity  claimed  for  kingship  is,  as  has  been  pointed 
out,  purely  constructive.  The  protection  afforded  by  Filmer's 
direct  Divine  injunction  is  abandoned ;  the  inspira-  ^p^,!nto 
tion  of  the  Bible  is  of  service,  only  so  far  as  was  attack. 
needed  to  authenticate  the  account  of  society  given 
in  Genesis.  The  truth  or  falsehood  of  Mr  McLen- 
nan's  theory  of  primitive  society  would  have  been 
a  vital  matter  for  Filmer.  Had  the  theory  of  the 
former  been  accepted,  the  system  of  the  latter  would 
have  fallen  like  a  house  of  cards.  But  the  mutterrecht 
would  have  had  no  bearing  on  the  common  argu- 
ments. Nothing  was  easier  than  to  meet  Filmer 
on  his  own  ground,  and  Locke  did  so.  He  asserts 
that  Filmer  has  misconceived  Genesis,  that,  as  a 
fact  of  history,  no  such  kingly  power  as  was  claimed 
for  him,  was  ever  held  by  Adam,  that,  if  it  had 
been,  it  could  have  no  possible  reference  to  the 


158 


FROM  JAMES  I.  TO  THE  JACOBITES 


power  of  modern  kings.  Locke  then  interrogates 
his  own  consciousness,  as  to  what  are  the  natural 
instincts  of  men,  and  infers,  on  the  same  ground  of 
natural  law  as  Filmer,  a  totally  opposed  conclusion. 
Filmer's  political  theory  is  in  brief  this.  Natural 
rights  are  Divine  rights.  There  is  one  natural  right 
only,  the  authority  of  the  father.  This  is  preserved 
in  the  sovereign  power  in  all  states.  All  men  are 
born  slaves.  Locke  on  the  other  hand  asserts,  that 
all  men  are  born  free  and  equal,  with  inalienable 
rights  granted  them  by  God  ;  that  states  are  founded 
upon  compact  from  motives  of  utility,  and  are  not 
given  unlimited  authority,  for  that  would  be  to 
contradict  the  law  of  self-preservation.  The  point 
of  view  of  both  Locke  and  Filmer  is  in  reality 
identical.  Both  believe  that  there  existed  a  state 
of  nature,  and  that  true  principles  of  politics 
may  in  some  way  be  discovered  by  investiga- 
tion into  it.  Both  believe  that  whatever  rights 
belong  to  man  living  in  a  state  of  nature  are 
inalienable  and  may  not  be  taken  from  him  by  any 
form  of  organized  society.  Filmer  believes  that  the 
one  inalienable  right  is  the  power  of  the  father. 
He  saw  what  Hobbes  and  Locke  and  all  believers  in 
the  original  compact  failed  to  see,  that  political 
society  is  natural  and  necessary  to  men,  and  is  no 
artificial  creation  of  their  choice.  But  his  method 
of  proving  this  is  by  finding  the  state  of  nature  in 
the  patriarchal  society  described  in  the  Bible.  He, 
indeed,  believed  that  there  was  irrefragable  evidence 
to  prove  that  his  state  of  nature  was  a  historical 
fact;  while  Locke  and  Hobbes  were  content  to 


FROM  JAMES  I.  TO  THE  JACOBITES 


159 


urge  on  d  prion  grounds  that  theirs  must  have 
existed,  although  there  was  no  evidence  to  shew  it. 

In  both  cases  there  was  the  same  impassable  Gulf 
gulf  between  the  present  condition  of  society  and  actual^ 
what  was  believed  to  be  the  primitive  state.    The  ^oczetij  and 
theory  of  compact  is  Locke  s  method  of  bridgmg  the  of  nature. 
gulf.    Filmer  in  this  point  is  less  successful.  He 
admits  that  the  heir  of  Adam  is  not  now  to  be  found, 
and  only  escapes  the  difficulty  by  means  of  the 
principle  that  possession  gives  the  best  right,  where 
none  else  is  to  be  found.    But,  as  with  Locke  the 
rights  of  man  in  the  state  of  nature  still  subsist  to 
be  the  foundation  of  political  liberty,  save  in  so  far 
as  they  have  been  partially  surrendered  to  the  civil 
government,  so  with  Filmer  the  rights  of  the  father 
are  the  foundation  of  all  political  society  and  of  the 
title  of  every  government  to  the  obedience  of  its 
subjects. 

Locke  of  course  had  no  difficulty  in  pointing 
out,  that  it  is  a  strange  proceeding  to  argue  Divine 
appointment  for  a  number  of  monarchs,  who  are 
admittedly  the  descendants  of  usurpers,  merely  on 
the  ground  that  their  ancestors  were  less  scrupulous 
than  those  of  other  men.  Locke's  destructive 
criticism  is  completely  effective,  owing  to  the  slender 
bond  of  connection  between  the  primitive  family 
and  modern  political  society.  Thus  Filmer's  work 
forms  the  transition  stage  between  the  older  views 
and  those  of  Locke  in  more  ways  than  one.  Not 
only  does  it  afford  the  necessary  link  of  developement 
between  theories  of  Divine  and  of  natural  right ;  but 
it  approaches  the  schemes  of  Locke  and  Rousseau 


160 


FROM  JAMES  I.  TO  THE  JACOBITES 


in  its  singular  idealism.  It  is  almost  grotesque  to 
treat  political  theory  as  though  all  its  problems 
could  be  solved  by  an  appeal  to  the  primitive  family. 
The  attempt  to  find  in  patriarchal  authority  the 
sole  source  of  all  political  rights,  and  to  derive  the 
modern  state  directly  fi-om  the  Adamic  society  gives 
to  Filmer's  work  an  air  of  unreality,  which  is  not 
shared  by  that  of  earlier  -writers.  While  Filmer's 
method  was  sounder,  his  system  was  more  artificial 
than  that  of  his  predecessors.  The  same  might  be 
said  of  Locke  with  reference  to  Filmer.  His  system 
is  as  much  more  unhistorical  in  its  basis,  as  it  is 
more  reasonable  in  its  conclusions,  than  that  of 
Filmer. 

Stages  The  change  which  had  thus  come  over  the 

develop-  loyalist  method  of  conducting  the  controversy  is 
ment  of  significant.  [  The  theory  of  the  Divine  Right  of 
andmb'-^'^  Kings  took  its  rise  as  a  doctrine  of  the  right  of 
sequent  secular  governments  to  be  free  from  clerical  inter- 
ference. In  its  essential  idea  the  doctrine  had  been 
at  work  in  English  politics  from  the  days  of 
Henry  VIII.  So  long  as  there  was  much  to  be 
apprehended  from  the  side  of  those  who  claimed  a 
Divine  right  to  control  the  state  in  the  interests  of 
an  ecclesiastical  organization,  it  was  necessary  to  lay 
stress  on  the  religious  side  of  the  argument  for 
kingship.  But  as  this  danger  tended  to  disappear, 
and  the  doctrine  had  begun  to  do  its  work,  secular 
politics  were  free  to  develope  on  their  own  lines. 
Theological  systems  of  politics  and  purely  theological 
arguments  were  no  longer  needed  to  meet  the 
claims  of  Pope  or  Presbytery,  and  politics  entered 


FROM  JAMES  I.  TO  THE  JACOBITES  161 


upon  the  modern  stage.  The  theory  of  natural 
rights  is  inevitably  the  next  stage  of  developement. 
It  abandons  the  attempt  to  discover  in  Scripture 
the  sanctions  of  civil  society,  and  its  direct  institu- 
tion by  God.  Yet  it  retains  the  conception  of 
an  immutable  system  of  politics,  rooted  in  the 
nature  of  man,  and  not  to  be  changed  through 
motives  of  mere  expediency.  Like  the  theory  of 
Divine  Right,  the  doctrine  of  natural  rights  is  an 
attempt  to  determine  d  priori  the  nature  of  govern- 
ment, the  limits  of  obedience,  and  the  principles 
which  should  govern  state  action^  Less  even  than 
the  theory  of  Divine  Right  does  it  take  account  of 
circumstances  or  historical  causes,  [it  proclaims  a 
system  of  politics,  clear,  universal,  and  unalterable, 
based  not  on  the  uncritical  study  of  Scripture,  but 
on  what  are  believed  to  be  the  teachings  of  nature 
and  the  dictates  of  pure  reason.J  Many  supporters  of 
Divine  Right  confined  their  view  to  special  states, 
and  peculiar  circumstances,  whatever  their  system 
might  claim  of  abstract  truth  and  universality. 
The  supporters  of  natural  rights  in  most  cases  paid 
no  regard  to  racial  characteristics  or  external  con- 
ditions, but  proclaimed  a  doctrine  that  should  last 
for  all  time  and  be  valid  for  all  stages  of  civilization. 
P Yet  if  they  erred  greatly,  in  seeking  an  eternal 
system  of  rights  and  duties  to  govern  the  fleeting 
arrangements  of  political  constitutions,  at  least  their 
plan  of  seeking  political  theory  in  nature  had 
this  merit :  that  they  could  not  altogether  ignore 
the  principle  of  utility.  Thus  they  were  one  step 
nearer  to  modern  political  theory.  1 

p.  11 


162  FROM  JAMES  I.  TO  THE  JACOBITES 


At  this  point  considerations  of  utility  will  begin 
once  more  to  be  of  importance,  while  a  further  stage 
will  be  the  abandonment  of  the  attempt  to  find  an 
immutable  political  theory  ;  and  politics  will  become, 
as  they  are  at  the  present  day,  purely  utilitarian  or 
historical.  It  was  the  work  of  the  supporters  of  the 
Divine  Right  of  Kings  to  make  this  possible.  It 
was  impossible  for  the  state  to  develope  its  principles, 
so  long  as  its  very  existence,  as  an  independent 
power,  was  constantly  threatened  by  clericalism. 
To  set  it  free  from  ecclesiastical  control  it  was 
needful  to  claim  Divine  institution  for  its  head. 
But  when  this  purpose  was  realized,  and  indepen- 
dence attained,  the  state,  secure  in  its  new-found 
freedom,  may  develope  principles  of  politics  without 
reference  to  theology.  Before,  it  would  have  been 
at  once  dangerous  and  useless  so  to  do.  The  main 
work  of  the  theory  of  Divine  Right  was  drawing  to 
a  close,  although  a  little  remained  to  be  accom- 
plished. It  was  natural  that  its  supporters  should 
alter  the  basis  upon  which  their  theory  rested. 
Men  do  not  desert  a  belief,  until  some  time 
after  its  main  purpose  is  fulfilled.  As  has  been 
seen,  there  were  still  potent  causes  to  attach 
men  to  the  doctrine.  So  long  as  the  recollection 
was  vivid  of  the  martyrdom  of  Charles  and  of 
the  tyranny  of  Oliver,  men  would  continue  to 
assert  the  theory.  Besides,  all  danger  from  Rome 
or  Scotland  was  scarcely  over  as  yet.  But  the 
latter  had  sufficiently  diminished  in  magnitude,  to 
admit  of  the  transition  from  the  purely  Scrip- 
tural to   the  sociological  argument  on  behalf  of 


FROM  JAMES  I.  TO  THE  JACOBITES  163 


Divine  Right'.  It  is  also  a  note  of  the  more  general 
change  from  the  theological  age  to  the  rationalist, 
which  marked  the  latter  half  of  the  seventeenth 
century,  and  may  be  discerned  in  Baxter. 

The  changed  method  of  conducting  the  con-  Nahon. 
troversy  appears  in  a  work  written  later,  though 
published  earlier  than  The  Patriarcha,  Nalson's 
Common  Interest  of  King  and  People.  The  title  1678. 
of  this  book  sufficiently  indicates  the  main  line  of 
argument  employed.  The  author  begins  with  an 
elaborate  account  of  the  principle  of  self-preservation 
and  of  the  desire  of  happiness,  as  the  ruling  motives 
of  human  nature.  No  terms  could  be  stronger  than 
those  in  which  the  writer  sets  forth  the  universality 
of  this  law  of  nature,  and,  were  it  not  for  the  excel- 
lence of  the  style,  the  first  few  pages  might  have 
been  written  by  Bentham.  The  basis  of  the  theory, 
unlike  that  of  Filmer,  is  utilitarian,  although  other 
proofs  are  not  discarded.  There  is  a  short  exposition 
of  the  patriarchal  theory,  but  this  is  not  made  the 
foundation  of  the  system.  Monarchy  is  proved  to 
be  the  most  perfect  form  of  government  by  reason 
of  its  antiquity,  its  universality,  its  conformity  with 
human  nature,  and  of  the  fact  that  it  satisfies  the 

1  A  proof  that  this  was  the  case  is  afforded  by  the  writings  of 
Bellarmine.  The  Cardinal  repeatedly  allows  to  kingship  the  con- 
structively Divine  character  of  being  rooted  in  natural  necessity. 
But  he  declares  that  the  Pope  has  an  immediate  commission  from 
God,  which  kings  have  not.  Their  right  is  indeed  Divine,  for  it  is 
natural,  but  it  is  not,  as  the  Pope's  power  is,  founded  on  direct 
Divine  injunction.  Against  Bellarmine  the  older  writers  assert 
that  the  king  does  hold  his  power  by  a  direct  Divine  grant.  But 
Filmer  partially  abandons  this  argument. 

11—2 


164 


FROM  JAMES  I.  TO  THE  JACOBITES 


great  ends  of  all  action,  the  instinct  of  self-preserva- 
tion and  the  desire  of  happiness.  So  far  the  tone 
is  strangely  modern.  Then  in  a  short  passage  the 
writer  reverts  to  the  older  mode  of  argument,  and 
adduces  the  fourth  of  Daniel  as  clear  evidence  of  the 
Divinity  of  Kingship.  The  book  is  remarkable  for 
its  lucidity  and  gi-asp  of  principles.  It  is  further  to 
be  observed,  that  it  contains  an  elaborate  demon- 
stration of  the  incompatibility,  not  merely  of  the 
Papal  sovereignty,  but  of  the  Presbyterian  system 
with  the  independence  of  the  secular  authority  and 
with  the  liberty  of  the  subject.  Nalson  is  convinced 
that  Presbyterianism,  if  allowed  a  free  hand,  is  de- 
structive of  the  freedom  of  Crown,  Parliament,  and 
individual  alike.  Here  again  with  all  his  ability, 
which  invests  the  work  with  an  interest  lacking  to 
the  usual  hash  of  texts  in  royalist  pamphlets  and 
sermons,  the  author  has  yet  surrendered  his  whole 
case  by  his  adoption  of  the  utilitarian  standpoint. 
In  a  case  like  that  of  James  II.  will  it  be  possible 
seriously  to  maintain  that  his  continued  reign  would 
be  agreeable  to  the  principle  of  utility  ?  Doubtless 
it  might  be  the  case,  for,  as  Hobbes  thought,  the 
evils  attendant  on  the  most  peaceful  Revolution  may 
outweigh  every  benefit  attained  thereby.  Luther 
also  had  taken  the  view,  that  no  price  was  too  high 
for  the  peace  secured  by  the  power  of  the  prince. 
But  such  a  view  could  never  become  popular.  Unless 
the  doctrine  of  non-resistance  has  something  higher 
than  considerations  of  utility  to  recommend  it,  it 
cannot  hope  to  hold  its  ground.  The  mass  of  man- 
kind will  never  be  convinced,  that  it  is  useful  to 


FROM  JAMES  I.  TO  THE  JACOBITES 


165 


maintain  in  power  a  govonuTienfc,  which  is  oppressive 
beyond  limit.  But  they  may  be  persuaded  that  it 
is  their  duty  to  do  so^  If  acuter  minds  have  come 
to  the  conclusion  that  a  revolution  is  always  inex- 
pedient, the  only  method  of  making  their  opinion 
practically  effective  will  be  by  inducing  the  vulgar 
to  believe  that  it  is  always  iniquitous.  This  was  the 
gi'eat  source  of  strength  to  the  upholders  of  Passive 
Obedience,  as  the  plain  teaching  of  the  Gospel.  If 
Christianity  be  indeed  a  doctrine  of  the  Cross  in 
their  sense,  and  every  kind  of  tyranny  is  to  be 
endured  by  true  Christians,  there  will  be  no  use 
demonstrating  the  inexpediency  of  non-resistance. 
The  more  foolish  it  is  from  a  common-sense  point 
of  view,  the  more  clearly  is  it  the  duty  of  those  who 
look  beyond  this  world.  What  has  convenience  to 
do  with  God's  direct  command  ?  But  with  Nalson's 
system  these  considerations  lose  their  force,  and  in 
his  book,  even  more  than  in  that  of  Filmer,  we  see 
the  beginning  of  the  end.  But  Filmer's  patriarchal 
theory  was  the  necessary  transition  to  the  next 
stage  of  developement,  that  represented  by  Locke 
and  Sidney,  while  Nalson's  thought  rather  looked 
forward  to  a  yet  further  day,  when  natural  rights 
themselves  should  be  scouted  as  ridiculous,  and  po- 
litical theories  be  constructed  on  utilitarian  principles 
alone. 

Both  Filmer  and  Nalson  were  a  little  in  advance  Yet  the  old 
of  most  contemporary  \mters.  The}'  do  no  more  than  ig'^H^f 
foreshadow  the  decadence  in  store  for  the  old  modes  popular. 
of  thought  and  argument.    Meanwhile,  these  remain 
with  little  diminution  in  popularity  for  some  time 


166 


FROM  JAMES  I.  TO  THE  JACOBITES 


to  come.    The  majoi-ity  of  the  supporters  of  Divine 
Right,  even  after  the  Revolution,  use  arguments  that 
differ  but  slightly  from  those  of  the  time  of  the 
Commonwealth.   Indeed,  one  effect  of  the  Revolution 
was  to  turn  the  eyes  of  all  who  did  not  love  it  on 
the  past  and  to  deepen  for  a  time  the  sentiment 
Third       in  fjivour  of  the  purely  Biblical  method  of  political 
fheth/ori/-  ^^^^ry.    The  non-jurors  had  been  beaten  by  accom- 
romantic.  plished  facts.   Like  all  supporters  of  "  lost  causes  and 
forsaken  beliefs,"  they  draw  their  main  inspiration 
from  the  past.   The  very  fact  that  men  are  beginning 
to  discredit  their  modes  of  reasoning  as  obsolete,  will 
cause  them  to  cling  to  them  with  greater  tenacity,  as 
the  loved  relics  of  the  order  which  has  passed  away. 
The  raison  d'etre  of  their  party  is  the  sentiment  of 
romantic  attachment  to  old  modes  of  thought  and 
feeling,  to  outworn  theories,  and  to  ideals  which 
practical  men  have  forgotten,  f The  Jacobite  will  be 
more,  not  less  inclined  to  lay  stress  upon  the  re- 
ligious duty  of  Passive  Obedience  and  upon  the  direct 
appointment  of  kings  by  God,  than  was  the  contro- 
versialist of  the  Restoration,  who  had,  as  he  hoped, 
not  merely  to  justify  the  past,  but  to  carve  out  the 
future^  To  the  one  Divine  Right  was  a  force  of 
practical  value,  and  its  employment  part  of  the 
business  of  life.    To  the  other  it  was  a  memory 
and  a  vain  regret. 
PrevalencA      The  Revolution  and   the  Act  of  Settlement 
belief  even  disposed  for  ever  of  the  doctrine  of  indefeasible 
after  the    hereditary  right,  and  made  it  all  but  impossible 
tion.        to   maintain  the   theory  of  non-resistance.  Yet 
these  results  were  by  no  means  immediate,  so  far 


FROM  JAMES  I.  TO  THE  JACOBITES 


167 


as  the  bulk  of  Englishmen  were  convinced.  The 
doctrine  indeed  could  not  die  out  all  at  once.  And 
the  existence  of  a  widespread  feeling  in  favour  of 
the  Stuarts  is  evidence  that  it  did  not  do  so.  The 
Revolution  threw  on  to  the  side  of  the  Stuarts  the 
whole  latent  sentiment  in  favour  of  all  institutions 
or  beliefs  of  which  the  life  is  decaying,  great 
practical  reason  for  supporting  the  theory  of  Divine 
Right  no  longer  existed.  At  last  all  danger  to  the 
state  from  clerical  interference  was  at  an  end.  It 
became  moreover  increasingly  clear  that  the  doctrine 
as  a  pillar  of  government  had  done  its  work,  and 
that  the  leaders  of  thought  and  action,  with  whom 
rested  the  future,  had  far  other  aims  in  view  than 
the  conduct  of  politics  in  accordance  with  theological 
theories  of  kingship  and  obedience.  But  all  this 
tended  to  beget  a  sentiment,  that  was  to  invest  the 
Stuart  line  with  a  dignity,  which  it  never  had  when 
in  possession,  and  to  bestow  upon  it  a  charm,  to 
which  no  reigning  dynasty  can  lay  claim^  From  1688 
the  Stuart  cause  is  the  expression  of  the  '  passion 
of  the  past ' ;  and  the  theory  that  supports  it  suffers 
a  like  change.  All  men's  hatred  of  what  is  new 
because  it  is  new,  their  dislike  of  conquering  ideas 
because  they  are  winning,  their  love  of  the  antique  for 
no  reason  than  that  it  is  not  modern, -will  draw  them 
to  the  side  of  the  'king  over  the  water.'  The  Divine 
Right  of  Kings  has  reached  its  last  stage.  At  first  a 
method  of  meeting  in  argument  a  foe,  whom  it  was 
impossible  to  conquer  by  force,  it  grew  in  weight 
and  eflficiency,  until  it  became  one  of  the  chief  means 
whereby  men  justified  to  themselves  the  rejection  of 


168  FROM  JAMES  I.  TO  THE  JACOBITES 


that  Papal  supremacy  that  threatened  to  retard  the 
free  developement  of  the  national  states.  The  deep 
sentiment  of  anti-clericalism  which  it  enshrined  saved 
men  from  the  danger  of  submitting  to  another  and  a 
yet  more  blighting  tyranny  of  ecclesiasticism,  that 
threatened  to  suck  the  life  out  of  state  and  people 
with  a  network  of  inquisitorial  jurisdiction  and  with 
a  narrow  code  of  life  and  morality.  In  the  political 
conflicts  of  the  seventeenth  century,  in  which  religion 
played  so  large  a  part,  the  Divine  Right  of  Kings 
had  been  the  form  in  which  expression  had  been 
found  for  men's  reverence  for  tradition  and  for  their 
instinctive  sense  that  progress  can  never  come  by 
trampling  on  old  institutions.  Thus  the  theory  was 
the  bulwark  of  the  restored  monarchy,  by  rallying 
sentiment  round  the  King,  as  the  ancient  centre 
and  symbol  of  national  life.  It  had  preserved  the 
continuity  of  the  constitutional  system,  and  was 
probably  a  main  cause  of  the  tranquillity,  which 
marked  the  English  alone  among  the  Revolutions 
Effect  of  of  history.  By  a  fiction,  as  expedient  as  it  was 
the  theory  transparent,  the  sentiment  in  favour  of  obedience 

tn  main-  ^  ' 

taining  the  to  law  was  prevented  from  receiving  any  shock,  and 
'of'the"^^*^  those  who  smile  at  the  falsity  of  the  assertion  that 
English  James  II.  '  abdicated  the  throne '  would  do  well  to 
bear  in  mind  that  it  is  far  easier  to  shake  the  law- 
abiding  sentiment  by  an  admitted  break  with  the 
legal  system  of  the  past,  than  it  is  to  repair  it  by 
any  improvement  in  the  constitution.  But,  if  with 
a  certain  amount  of  ingenuity  the  doctrine  of  non- 
resistance  might  still  be  maintained  to  be  a  principle 
of  English  constitutional  life,  it  was  not  so  with 


FROM  JAMES  I.  TO  THE  JACOBITES  169 


indefeasible  hereditary  right,  which,  after  suffering 
a  shock  at  the  Revohition,  received  an  in-etrievable 
blow  in  the  Act  of  Settlement.  Nor  was  it  possible 
any  longer  to  contend  that  the  King  was  absolutely 
sovereign,  and  accountable  to  God  alone.  Hence- 
forward the  Divine  Right  of  Kings  is  the  expression 
of  regretful  aspirations,  and  in  no  sense  of  actual  fact. 
From  a  practical  force  it  has  become  a  romantic 
sentiment.  Pity  for  the  unfortunate  and  loyalty  to 
a  forlorn  hope  were  now  the  main  elements  in  the 
faith.  Its  true  character  is  to  be  found  in  that  burst  The 
of  lyrical  lament,  that  echoed  with  pathetic  melan-  ^o/jf^s. 
choly  of  tone  the  longings  of  men,  who  were  ever 
"  looking  backwards."  It  is  in  this  rather  than  in 
sermons  or  treatises  that  we  must  seek  the  source 
of  such  lingering  vitality,  as  still  remained  to  the 
doctrine.  No  fresh  developement  in  argumentative 
method  was  possible,  and  the  writings  of  Leslie  are 
in  many  respects  little  more  than  an  expansion  of 
Filmer.  But  perhaps  in  the  very  brilliancy  of  the 
non-juring  controversialist,  in  his  pungent  satire  and 
acute  criticism  we  may  have  an  indication,  that  the 
defence  of  the  doctrine  is  becoming  rather  a  jeu  ^ 
d'esfvit  than  a  serious  labour.  Once  an  intellectual 
weapon  against  the  assaults  of  Rome,  the  by  no 
means  contemptible  expression  of  a  very  practical 
determination  to  ensure  for  the  state  a  free  hand, 
the  doctrine  in  losing  its  value  as  a  force  has  ac- 
quired a  certain  aesthetic  interest.  The  feeling  which 
keeps  it  alive  is  partly  artistic,  partly  sentiu^iental,  and 
becomes  vivid  to  us  in  the  song  for  the  blackbird, 
and  the  legendary  halo  surrounding  Bonnie  Prince 


170  FROM  JAMES  I.  TO  THE  JACOBITES 


Charlie.  This  phase  of  the  belief  is  enshrined  for 
ever  in  the  novels  of  Sir  Walter  Scott.  The  use, 
which  more  recent  writers  of  romance  have  made 
of  the  Jacobite  sentiment,  is  a  further  proof  that 
the  main  interest  of  the  belief  after  1688  is  aesthetic. 
This  aspect  of  the  doctrine  is  indeed  so  familiar  to 
us,  that  it  is  hard  to  realize  that  it  ever  possessed 
any  other.  We  find  it  easy  enough  to  regard  with 
a  certain  tolerance  a  faith,  which  is  to  us  a  mere 
romantic  pose.  But  it  is  not  so  easy  to  recognize, 
that  this  was  only  the  latest  phase  in  the  history  of 
a  theory,  which  had  been  a  force  of  great  practical 
importance,  the  expression  (in  obsolete  forms)  of  deep 
truths  of  political  philosophy  and  of  a  necessary  stage 
of  political  developement.  That  all  this  was  the  case 
there  is  ample  evidence  to  prove.  But  the  practical 
work  of  the  doctrine  was  done  before  the  Revolution, 
and  it  is  well  to  realize  that  the  tendency  to  hold 
it  was  the  inevitable  feeling,  that  touches  all  dying 
causes  with  a  sunset  charm.  It  is  those,  who  find 
artistic  gratification  in  contemplating  with  half- 
simulated  regret  an  order  which  is  no  more,  who 
will  more  and  more  make  up  the  diminishing  band 
of  Jacobite  enthusiasts. 

It  is  worthy  of  remark  that  Swift  and  Boling- 
broke,  the  two  most  brilliant  practical  politicians  on 
the  Tory  side,  have  neither  of  them  anything  but 
contempt  for  a  doctrine  which  they  regard  as  absurd 
and  as  emptied  of  all  effectual  influence.  Swift's 
pamphlet,  The  sentiments  of  a  Church  of  England 
man,  save  in  the  assertion  that  the  supreme  legis- 
lative power  may  never  be  resisted,  is  utterly  unlike 


FROM  JAMES  I.  TO  THE  JACOBITES 


171 


the  work  of  earlier  royalist  writers.  Nor  does  Boling- 
broke  like  the  theory  any  better.  Indeed  his  criticism 
is  far  more  modem  in  its  tone,  than  that  of  any  other 
writer  with  views  resembling  his  own.  His  assertion 
that  "  a  divine  right  to  govern  ill  is  an  absurdity ; 
to  assert  it  blasphemy^ "  might  have  been  written 
a  hundred  years  later,  and  exhibits  the  same  sort 
of  ignorance  to  be  deplored  in  most  criticisms  of  the 
doctrine.  The  real  point  of  it  is  entirely  missed,  and 
a  fiiith,  which  had  at  least  in  the  past  exercised  great 
influence,  is  exhibited  as  though  it  had  never  been 
more  than  antiquarian  pedantry. 

Just  in  so  far  as  for  practical  men  the  theory  is 
ceasing  in  the  reign  of  Anne  to  have  any  interest, 
it  begins  to  have  a  value  for  all  who  with  whatever 
motive  are  in  love  with  what  is  antiquated,  and  is 
passing  into  tradition.  There  is  always  a  sense  of 
attachment  to  a  dispossessed  house,  and  some  men 
still  cling  to  Divine  Right  as  investing  with  a  certain 
glamour  of  mystic  import  the  ancient  line  and  its 
God-given  title.  The  Divine  Right  of  the  Stuarts 
becomes  the  symbol  and  the  sacrament  of  the  con- 
trast between  right  and  might,  between  the  favour 
of  men  and  the  justice  of  God,  between  the  romance 
of  the  past  and  the  sordid  turmoil  of  the  present, 
between  the  ideal  of  a  state  and  the  reality  of  politics. 
Perhaps  it  is  not  too  much  to  say,  that  the  doctrine 
yet  survives  as  an  influence  through  the  peculiar 
melancholy  interest,  that  is  still  felt  to  surround  the 
ill-fated  race,  whatever  be  the  light  in  which  their 
rule  is  regarded. 

1  The  idea  of  a  patriot  king.    Bolingbroke,  Works,  ii.  379. 


172  FROM  JAMES  I.  TO  THE  JACOBITES 


Yet  the  Yet  even  as  a  practical  force  the  doctrine  was  by 

^had  still        means  dead  for  some  time  yet.  In  this  connection, 

some  the  non-iurors  may  perhaps  be  disregarded  as  a  small 
vitality.     ,    ,      r-i    i-        V.       ^     •  ■  , 

body  ot  idealists.  But  the  insecurity  of  the  new  order, 

the  constant  intrigues  with  the  court  of  S.  Germains, 

the  perpetual  fears  of  Jacobite  risings  are  a  proof 

that  the  feeling  in  favour  of  the  dispossessed  dynasty, 

as  alone  possessing  a  lawful  title,  has  by  no  means 

spent  its  force.    The  incidents  of  the  Sacheverell 

case  are  alone  evidence  that  the  nation  had  not  as 

yet  made  up  its  mind  on  the  question.    Mr  Lecky^ 

is  of  opinion  that  the  Revolution  was  brought  about 

by  a  small  minority  of  men  far  in  advance  of  the 

general  body  of  their  countrymen.    Had  Boling- 

broke  been  the  victim  of  an  idea,  and  proclaimed 

the  Pretender,  as  Atterbury  wished,  there  would 

in  all  probability  have  been  a  peaceful  restoration 

of  the  Stuarts.    On  the  other  hand,  the  failure  of 

the  rebellions  of  1715  and  1745  shews  how  little 

of  practical  vitality  there  was  about  the  Jacobite 

creed.    Yet  it  may  well  be,  that  if  a  great  leader 

had  arisen,  he  might  have  brought  about  a  successful 

reaction.    Men  may  follow  a  statesman  in  carrying 

to  a  successful  issue  a  cause,  for  which  they  will 

not  move  a  finger  in  doubtful  circumstances.  Yet 

it  is  something  that  the  belief  in  hereditary  right 

should  have  been  strong  enough  to  cause  the  only 

High  Church  schism  in  the  history  of  the  English 

Church.    At  the  Sacheverell  trial  Divine  Right  is 

clearly  a  popular  sentiment.    Even  as  late  as  1747 

'  History  of  England,  i.  19. 


FROM  JAMES  I.  TO  THE  JACOBITES 


173 


a  pamphleteer  is  found  lamenting  its  continued 
prevalence. 

It  must  not  be  forgotten,  that  the  English  clergy 
claimed  the  phraseology  of  the  Bill  of  Rights  in 
support  of  their  contention  that  the  Revolution  did 
not  transgress  the  principle  of  non-resistance.  The 
strength  of  popular  belief  in  the  principle  is  attested 
by  the  very  insertion  of  the  word  "abdicated"  in  that 
document.  Again,  the  fiction  of  the  supposititious 
birth  of  the  Pretender  is  a  proof  of  the  influence 
the  Whigs  felt  it  necessary  to  counteract.  Further, 
it  was  possible  by  skilful  omission  for  the  clergy  to 
continue  to  preach  the  duty  of  passive  obedience 
to  the  established  government.  Sacheverell  was 
able  to  allege  in  his  defence  that  the  Revolution 
was  not  a  case  of  resistance  S  and  that  those  who 
brought  it  about  have  grossly  lied,  if  they  claim  that 
it  was.  Many,  then,  even  of  the  loyal  clergy  are  still 
found  maintaining  the  doctrine  of  non-resistance.  Of 
the  non-juring  controversialists  Leslie  and  Hickes  are 
the  most  interesting. 

Berkeley's  Discourse  of  Passive  Obedience  is  Berkeley, 
worthy  of  note  as  a  specimen  of  the  later  method 
of  argument.  Nothing  is  said  therein  of  hereditary 
right,  which  cannot  well  be  defended  by  a  sup- 
porter of  the  Act  of  Settlement.  The  argument 
is  that  government  is  natural  and  necessary  to  the 

1  Speech  of  Dr  Sacheverell,  4:  "My  Lords,  the  Resistance  in 
that  passage  by  me  condemned  is  nowhere  by  me  appHed  to  the 
Revolution,  nor  is  it  applicable  to  the  case  of  the  Revolution,  the 
Supreme  Power  not  being  then  resisted" :  cf.  also  Leslie,  The  Best 
Answer  and  The  Rehearsal,  passim. 


174 


FROM  JAMES  I.  TO  THE  JACOBITES 


wellbeing  of  mankind,  that  obedience  is  a  natural  law, 
that  to  natural  laws  there  is  never  any  exception. 
If  once  hard  cases  be  admitted  as  a  ground  for 
disregarding  the  rule,  it  will  be  as  easy  to  prove 
the  convenience  of  murder  in  certain  circumstances, 
as  it  is  to  justify  resistance  to  a  tyrant.  Thus  the 
transformation  of  method,  which  Filmer  was  found 
beginning  and  Nalson  carrying  a  little  further,  was 
completed  by  Berkeley^  He  deliberately  drops  the 
old  mode  of  argument,  because,  as  he  plaintively 
remarks,  men  will  no  longer  suffer  it.  He  hopes, 
however,  to  prove  his  case  by  employing  the  law 
of  nature  to  endow  with  immutable  and  inviolable 
authority  the  principle  of  passive  obedience. 

At  the  close  of  this  enquiry  may  be  quoted 
Bishop  Butler^,  whose  speculations  on  government 
and  subjection  shew  what  was  the  residuum  left 
by  the  doctrine  of  Divine  Right.  Human  society 
and  government  are  in  his  view  part  of  the  con- 
stitution and  course  of  nature,  and  therefore  Divine. 
Obedience  is  also  a  part  of  the  law  of  nature  and 
has  therefore  Divine  sanction.  He  contends  that 
government,  as  distinct  from  mere  force,  necessarily 
implies  reverence  in  subjects,  and  that  reverence 
will  be  liable  to  disappear,  if  it  be  not  founded  on 
the  sentiment  that  authority  is  the  ordinance  of 
God.  The  duty  to  obey  the  prince  rests  however  on 
the  same  footing  as  all  other  general  obligations, 
which    are   none   of   them   absolute   or  without 

1  Berkeley's  theory  applies  to  the  supreme  power  in  all  govern- 
ments. 

2  Butler,  Sermons  on  Special  Occasions,  iii.  and  v. 


FROM  JAMES  I.  TO  THE  JACOBITKS  175 


exception.  Butler  is  clear  that  the  possibility 
of  exceptional  cases  arising  ought  to  be  as  little 
brought  to  mind  as  may  be.  Rather  there  should 
be  inculcated  the  duty  of  Christian  subjects  to  obey 
not  only  for  wrath,  but  for  conscience'  sake.  This 
view,  similar  to  that  held  by  Hooker',  is  a  fair 
specimen  of  the  point  of  view  of  the  eighteenth- 
century  divine.  It  is  evident  that  by  this  time  all 
sense  of  the  original  purport  of  the  theory  has  been 
lost,  and,  since  its  work  is  done  and  facts  render  it 
impossible  of  support  by  any  loyal  subject,  its  edge 
has  been  taken  off.  Yet,  whittled  down  to  a  few 
harmless  truisms,  it  still  remains  to  stimulate  the 
sense  that  obedience  to  law  has  some  sanction  higher 
than  mere  personal  convenience. 

To  sum  up :  out  of  the  sentiment  common  to  all  Summary. 
Christians  that  subjection  to  lawful  authority  is  in 
general  a  religious  duty,  since  authority  is  part  of 
the  natural  and  Divine  order,  the  Papacy  developed 
a  claim  to  complete  supremacy,  as  the  only  Divinely 
ordained  government.  This  claim  was  met  by  a 
counter-claim  to  Divine  Right  on  behalf  of  the  Im- 
perial dignity.  In  the  sixteenth  century  the  doctrine 
was  elaborated  with  greater  rigidity, — the  principle 
of  absolute  non-resistance  seemed  necessary  to  pro- 
tect secular  government  from  clerical  interference. 
In  combination  with  other  causes,  this  doctrine  gave 
birth  to  a  theory  of  indefeasible  hereditary  right,  the 

1  Hooker,  Supposed  fragment  of  a  sermon  on  civil  obedience  and 
Ecclesiastical  Polity,  Book  viii.  passim,  e.g.  "God  doth  ratify  the 
works  of  that  sovereign  authority  which  kings  have  received  by 
men."   Ch.  ii.  §  7. 


176         FROM  JAMES  I.  TO  THE  JACOBITES 


prevalence  of  which  was  largely  due  to  the  fact  that 
both  Henry  IV.  of  France  and  James  I.  of  England 
obtained  their  thrones  by  right  of  birth  alone  and 
without  Papal  sanction.  In  the  seventeenth  century 
the  political  side  of  the  doctrine  came  out  most 
strongly,  and  it  is  seen  to  be  the  form  in  which  alone 
could  become  popular  the  theory  of  sovereignty.  It 
further  accomplished  a  work  in  softening  or  pre- 
venting political  changes.  Its  work  done,  it  began 
to  become  obsolete  at  the  Revolution,  and  tended  to 
pass  into  a  mere  sentiment.  Meanwhile  the  older 
method  of  argument  by  means  of  a  medley  of  Scrip- 
ture texts  had  given  place  to  the  contention,  that 
monarchy  and  obedience  are  a  part  of  the  natural 
order  and  therefore  Divine.  The  basis  of  the  theory 
was  no  longer  Biblical  and  theological,  but  historical 
and  utilitarian.  Yet  on  this  basis  the  gi-ound  could 
not  be  maintained ;  and  the  theory  gave  way  before 
the  doctrine  of  natural  rights  of  the  people  pro- 
pounded by  Locke,  which  is  only  the  Divine  Right 
of  Kings  in  a  disguised  form.  There  is  however  far 
more  weight  allowed  by  Locke,  than  by  Filmer  to  the 
principle  of  utility.  This  conception  may  be  expected 
to  overshadow  and  then  to  supersede  the  artificial 
fiction  of  the  original  compact  and  the  dream  of 
natural  inalienable  rights.  The  doctrine  of  Divine 
Right  not  only  was  transformed  by  imperceptible 
degrees  into  the  theory  of  natural  rights,  but  it  left 
behind  it  a  legacy,  in  the  sense  that  government  in 
general  is  Divine,  because  it  is  natural,  and  that 
obedience  to  law  is  a  religious  duty. 


CHAPTER  VIII 


PASSIVE  OBEDIENCE  AND  THE  CHURCH 
OF  ENGLAND 

The  doctrine  of  the  Divine  Right  of  Kings  has 
now  been  considered  in  respect  of  the  process  of  its 
developeraent  and  decay.    It  remains  to  regard  it  Divine 
statically,  so  to  say,  to  view  it  in  relation  to  rival  le^con.'^ 
theories  of  government.    It  must  be  remembered  sidered  in 

n    n     1         1-  T-v-      relation  to 

first  of  all  that  the  import  of  the  phrase  "  Divine  rival 
Right  of  Kings  "  is  mainly  negative.  It  implies  that 
there  is  no  foundation  for  the  pretensions  advanced 
by  certain  other  authorities  to  supremacy  by  God's 
especial  gi-ant.  The  notion  of  Divine  Right  is  in 
the  air;  all  theories  of  government  are  theories  of 
Divine  Right,  and  most  of  them  admit  so  much\ 
The  Pope  claims  by  Divine  Right,  so  do  the  Presby- 
terians. Even  the  author  of  the  Vindiciae  contends, 
that  since  kings  hold  their  crowns  by  God's  grace, 
they  may  be  judged  by  the  people,  as  interpreters 
of  the  original  Divine  compact^.  Again,  most  of 
the  English  writers  on  behalf  of  resistance  assert 
for  law  and  custom  a  claim  to  absolute  authority  by 

^  On  this  point  see  Leslie's  able  paper,  The  Rehearsal,  no.  53, 
Divine  Right  in  Government  acknmvledged  by  all. 
^  Vindiciae  contra  Ti/rannos,  Quaestio  i.  passim. 
P.  12 


178 


PASSIVE  OBEDIENCE  AND  THE 


All 

theories 
of  se  ven- 
teenth 
century 
are 

theories 
of  Divine 
Right. 


Divine  Right.  The  theory  of  natural  rights  is  but 
the  theory  of  Divine  Bight  under  a  changed  guise, 
a  fact  of  which  the  writings  of  Rousseau  form  the 
clearest  evidence.  Algernon  Sidney  contends  that  an 
unjust  law  ought  not  to  be  obeyed,  since  it  cannot 
bind  the  conscience  and  lacks  Divine  authority".  This 
view  is  one  which  admits  law  to  be  law  "simply  and 
strictly  so-called,"  only  when  it  is  believed  to  be  in 
accordance  with  the  Divine  will.  Sidney's  notion, 
that  the  sovereignty  of  the  people  is  inalienable, 
as  being  a  grant  from  God,  which  neither  human 
ordinance  nor  the  people's  own  consent  may  alienate, 
is  every  whit  as  much  a  theory  of  Divine  Right  as 
the  views  of  Main  waring  or  Sacheverell.  The  doctrine 
under  investigation  does  not  differ  from  contemporary 
theories  of  politics  in  alone  claiming  Divine  Right 
for  the  supreme  authority,  but  in  claiming  that  the 
King  is  the  supreme  authority.  All  the  theories 
alike  are  at  variance  with  modem  political  philo- 
sophy, for  they  all  assert  or  imply  a  claim  to  Divine 
Right.  In  this  respect,  they  differ  from  the  thought 
of  to-day,  but  agree  among  themselves.  If  the 
Divine  Right  of  Kings  be,  as  is  so  often  asserted, 
the  stupidest  of  all  theories  of  politics,  it  cannot 
be  because  it  seeks  to  find  a  Divine  authority  for 
government.  We  have  no  right  to  condemn  it 
beyond  other  theories  for  a  notion,  which  they  all 
hold  in  common.  The  point  to  consider  is,  how  far 
it  was  a  specially  stupid  theory  of  politics,  as  com- 
pared with  other  views  prevalent  in  the  sixteenth 
and  seventeenth  centuries. 

*  Discourses  on  Government,  iii.  §  11. 


CHURCH  OF  ENGLAND 


179 


It  will  be  convenient  first  of  all  to  examine  the  Religioua 
theory  in  relation  to  those  doctrines  which  most  ''the ori will 
directly  controvert  it  and  assert  a  Divine  Right  for 

(lisCUS6€€t» 

some  ecclesiastical  authority.  In  this  chapter  the 
religious  aspect  of  the  theory  will  be  the  main 
element  considered.  Afterwards  it  will  be  examined 
on  its  political  side,  and  its  relations  to  other  views 
of  politics  investigated. 

From  the  foregoing  investigation  it  must  have  its  anti- 
appeared  sufficiently  that  the  theory  arose  out  of  the  Origin. 
reaction  against  the  Papal  pretensions.  It  was  the 
need  of  a  controversial  method  to  meet  the  claims 
of  the  spiritual  power,  which  produced  the  doctrine 
of  the  Divine  Right  of  Kings.  This  has  been  shewn 
to  be  the  case  in  the  Empire,  in  France,  and  in 
England.  If  further  evidence  be  requii-ed,  it  is 
only  necessary  to  take  up  at  random  any  tract 
or  pamphlet  on  behalf  of  royal  rights  written 
during  the  seventeenth  century.  In  all  probability 
the  name  of  either  the  Pope  or  Bellarmine  will 
be  prominent  on  the  first  page.  The  royalist 
authors  have  the  Pope  on  the  brain.  Whoever  be 
their  immediate  antagonist,  the  Pope  is  always  in 
the  background,  and  it  is  against  him  that  the  long 
struggle  is  waged.  Preachers  on  Jan.  30th  assert 
that  the  martyrdom  of  Charles  was  really  the  work 
of  the  Jesuits,  or  they  open  their  sermons  with  an 
elaborate  proof  not  that  resistance  is  a  sin,  but  that 
Papal  interference  is  against  the  laws  and  liberties 
of  this  realm  of  England^    Filmer  was  perhaps  less 

•  In  a  sermon  preached  before  the  King  on  January  30,  168f , 
Dr  Turner's  first  thought  is  of  the  Pope  and  of  the  advantage  to 

12—2 


180  PASSIVE  OBEDIENCE  AND  THE 


anti-papal  in  sentiment  than  most  of  the  supporters 
of  the  theory.    Yet  his  Patriarcha  opens  with  an 
attack  on  Bellarmine.    Hobbes  was  the  one  great 
writer  of  the  time,  whose  thought  was  not  domi- 
nated by  the  notion  of  Divine  Right.    Yet  Hobbes 
devotes  a  whole   book  of  The  Leviathan  to  the 
consideration  of  The  Kingdom  of  Darkness,  or  the 
Roman  Church.    Besides,  the  commonest  term  for  a 
Identifica-  Dissenter  is  Jesuit.    This  is  used  with  a  definite 
l)i^senters  intention  and  is  not  merely  vague  vituperation.  The 
with        Jesuits  are  regarded  as  par  excellence  the  teachers 

Jesuits  •  •  • 

of  the  doctrine  of  resistance.  All  the  special  tenets 
of  the  Society  go  for  nothing  beside  this  one  striking 
fact,  that  its  members  deliberately  weaken  the  bonds 
of  allegiance  and  argue  that  under  certain  conditions 
a  nation  may  resist  and  even  depose  its  sovereign. 
Now  the  Dissenters  teach  the  same  doctrine,  and 
therefore  they  may  without  injustice  be  dubbed 
Jesuits  in  disguise.  It  is  not  possible  to  read  the 
numerous  pamphlets  and  sermons,  in  which  this 
view  is  set  forth,  without  seeing  that  the  royalist 
writers  were  sincere  and  believed  themselves  to  have 
made  an  important  discovery,  as  to  the  true  nature 
of  Dissent.  Rome  would  for  its  own  ends  permit 
subjects  to  resist.  Dissenters  would  for  the  good  of 
the  Commonwealth  permit  the  same.  Therefore 
Dissenters  are  in  reality  Romanists,  and  only  play  at 
Protestantism.  The  dominant  feeling  is  that  the 
supreme  heresy  of  the  Roman  Church  was  the  claim 

Rome  of  the  execution  of  Charles.  "Is  the  greatest  misgovern- 
ment  sufficient  pretence  for  any  Pope  or  consistory  on  earth  to 
depose  a  Sovereign  Power  ? "  (23.) 


CHURCH  OF  ENGLAND 


181 


put.  forth  on  behalf  of  the  Papacy  to  a  political 
supremacy  over  all  kings  and  princes.    The  sense 
of  this  dwarfs  everything  else,  and  all  the  other  de- 
fects of  the  Roman  system  are  viewed  as  nothing  in 
comparison  with  the  cardinal  iniquity  of  the  Papal 
sovereignty.  j^Every  sect, which  in  any  way  approaches 
to  the  claim  of  Rome  to  limit  the  "  true  law  of  free 
monarchies,"  is  thus  regarded  as  consciously  or  un- 
consciously Roman  in  its  tenets./  It  is  impossible 
to  deny  that  intense  hatred  oT  the  Pope  and  the 
Jesuits,  as  his  chief  supporters,  was  the  animating 
motive  of  the  upholders  of  the  Divine  Right  of 
Kings.    Yet  the  hatred,  be  it  observed,  is  rather  ^ 
political  than  religious.    Comparatively  little  is  said  Jesuits  are 
of  the  erroneous  doctrines  or  corrupt  practices  of  the  ""^^^/f^. 
Roman  coinmunion.    Here  is  not  the  place  for  such  cal  rather 
discussion.    What  is  attacked  is  the  Papacy  as  a  religious 
political  authority,  claiming  universal  Empire,  and  grounds. 
dissolving  the  bonds  of  national  allegiance.  A  burning 
and  fanatic  hatred  of  the  Society  of  Jesus  is  another 
note  of  all  these  writings.    Yet  here  again  it  is  not 
as  the  servants  of  a  system  destructive  of  morality 
or  inimical  to  truth,  that  the  Jesuits  have  won  for 
themselves  their  monumental  meed  of  execration. 
This  is  not  the  gi'ound  of  their  evil  name.  That 
comes  of  their  ardent  support  of  the  Papal  claims. 
It  is  not  as  believers  in  Roman  Catholic  doctrine  S 

1  For  Bellarmine's  theory  of  the  indirect  political  supremacy 
of  the  Pope  see  Be  Romano  Pontifice,  L.  v.  especially  cc.  4,  6  ; 
also  his  contemptuous  brushing  aside  as  irrelevant  of  Barclay's 
refutation  of  the  theory  of  the  canonists  in  De  Excusatione  Bar- 
claii,  cc.  1,  2. 


182 


PASSIVE  OBEDIENCE  AND  THE 


but  as  Papalists,  that  they  are  attacked.  The 
Jesuits,  above  all  others,  have  devoted  their  energies 
to  an  elaborate  defence  of  the  Pope's  position. 
Whether,  as  the  canonists  claim,  his  political  power 
be  direct,  or,  as  Bellarmine  argues,  it  be  merely 
indirect,  certain  it  is  that  far  the  weightiest  argu- 
ments in  his  favour  are  those  of  Jesuit  writers^ 
Others,  who  think  themselves  loyal  enough  to  the 
Pope,  may  reason  and  refine  away  his  political  power, 
and  argue  in  favour  of  the  oath  of  allegiance.  But 
of  all  this  the  Jesuits  will  have  nothing.  They 
assert  on  behalf  of  the  Pope  pretensions,  which  would 
have  shamed  neither  Boniface  VIII.  nor  John  XXII., 
and  they  met  their  reward.  This  is  the  head  and 
front  of  their  offending ;  and  it  is  for  this  cause 
that  they  have  won  for  themselves  a  name  among 
Englishmen,  which  those  who  hate  them  most  nowa- 
days would  least  of  all  be  able  to  interpret.  It  may 
well  be  that  the  shouts  of  applause,  with  which  a 
present  day  audience  at  Exeter  Hall  would  greet 
an  attack  on  the  iniquities  of  Ignatius  Loyola,  are 
a  tribute  unconsciously,  but  none  the  less  really  paid 
to  the  Divine  Right  of  Kings.  And,  when  the 
members  of  the  Protestant  Alliance  or  the  Church 
Association  devote  a  field-day  to  the  exposition  of 
the   evils   and   dishonesty  of  Jesuitry,  they  are, 

1  Besides  Bellarmine,  there  stand  out  more  particularly 
Mariana,  who  approves  of  tyrannicide  in  general  and  of  the 
murder  of  Henry  III.  of  France  {Be  Rege  et  Regis  Instiiutione, 
I.  6)  and  decides  against  the  power  of  the  prince  to  legislate  in 
matters  of  religion  (Ibid.  10) ;  and  Suarez,  De  Legibus,  L.  iii.,  De 
Lege  Positiva,  ce.  7,  34,  and  L.  iv.  De  Lege  Canonica,  especially 
CO.  9,  19. 


CHURCH  OF  ENGLAND 


183 


though  they  think  it  not,  uniting  with  Andrews 
and  Bramhall,  with  Taylor  and  Jackson  in  repel- 
ling an  assault,  which  is  dangerous  to  the  State 
rather  than  to  the  Church,  and  are  exhibiting  a  relic 
of  that  patriotic  indignation,  which,  in  days  when 
the  political  claims  of  Rome  were  real  and  formidable, 
had  a  meaning  and  a  value.  Anyhow,  in  the  seven- 
teenth century  there  is  little  evidence  that  the 
Jesuits  in  England  are  attacked,  because  their  system 
is  disliked  or  their  teaching  believed  to  be  immoral. 
The  polemic  against  the  conquering  Society  is  not 
the  lofty  indignation  of  a  Pascal,  denouncing  a 
casuistry  which  is  debasing  the  moral  standard  and 
destroying  all  principles  of  right  action.  The  spirit 
of  the  English  royalists  is  as  far  inferior  to  that  which 
breathes  through  every  page  of  the  Provinciales,  as 
is  the  form  in  which  it  is  embodied.  But  if  the 
irony  of  the  believer  in  Divine  Right  be  lacking  in 
the  polish  of  the  "  letters,"  his  declamation  at  least 
surpasses  them  in  the  blind  force  of  passion.  The 
English  hatred  of  the  Jesuits  is  the  narrow,  but 
fervent  enthusiasm  of  patriots  disgusted  at  claims 
which  fetter  the  free  action  of  the  nation,  and 
enraged  with  those  who  presume  to  justify  such 
claims  with  the  pen  or  to  put  them  into  practice  with 
the  sword.  The  Jesuits  are  villains — that  the  royal- 
ists believe.  But  the  cause  is  not  that  they  believe 
or  teach  false  dogmas  in  theology,  not  that  they  are 
paving  the  way  for  moral  scepticism,  nor  that  they 
(in  general)  urge  and  permit  immoral  actions,  but 
merely  that  they  are  traitors  guilty  of  high  treason 
against  the  sovereignty  of  nations,  seeking  to  wrest 


184 


PASSIVE  OBEDIENCE  AND  THE 


the  diadem  from  the  imperial  crown  of  England, 
that  they  may  place  it  on  the  brows  of  a  priest :  Le 
clericalisme  c'est  Vennemi  is  the  governing  thought  of 
those  who  cry  for  Jus  Divinum  and  Non-resistance. 
Teaching        As  was  said,  it  is  this  sense,  that  the  essence  of 
wricT^^^'    Popery  is  a  claim  to  political  supremacy,  that  is  the 
regarded    cause  of  the  numerous  accusations  for  holding  Jesuit 

as  main  -r,     •         ■  ■  t  -r\- 

element  in  or  Papist  Views,  that  are  levelled  against  the  Dis- 
Popery     senters.    Filmer  tells  us  that  "  the  main  and  indeed 

and 

Dissent,  the  only  point  of  Popery  is  the  alienating  and  with- 
drawing of  subjects  from  their  obedience  to  their 
Prince  ^"  It  is  not,  then,  surprising  that  Hickes  is  of 
^  opinion  that  "Popery  having  apparently  corrupted  the 
Gospel  in  the  doctrines  of  obedience,  and  submission, 
and  the  divine  authority  of  the  supreme  power, 
especially  of  Kings ;  they  cannot  be  sound  and  ortho- 
dox Protestants,  who  hold  the  very  same  destructive 
principles  to  regal  government,  by  which  the  Papists 
have  corrupted  the  Gospel  in  these  points.  No  they 
are  not  sound,  and  orthodox  Protestants,  but  Pro- 
testants popularly  affected.  Papists  under  a  Protes- 
tant dress,  wolves  in  sheeps'  clothing,  rebellious  and 
Satanical  spirits  transformed  into  angels  of  light^." 
To  this  well-known  passage  quotations  similar  in 
spirit  might  be  multiplied  a  thousand-fold  I  The 

'  Preface  to  The  Anarchy  of  a  Mixed  Monarchy. 

^  Hickes,  Sermon  on  Jan.  30,  168^.  Another  sermon  describes 
Jesuits  as  Rome's  Fifth  Monarchy  Men;  Mr  Gardiner's  account  of 
the  Fifth  Monarchy  is  a  proof  of  the  appositeness  of  this  descrip- 
tion {History  of  the  Commonwealth  and  Protectorate,  i.  32). 

3  We  have  one  pamphlet  directed  against  The  Six  Popish 
Pillars,  Anabaptists,  Quakers,  Presbyterians,  etc.  (1690).  Jewell 
writes,  "Why  hath  he  [the  Pope]  and  his  complices  (like  Anabaptists 


CHURCH  OF  ENGLAND 


185 


reiterated  charge  that  Dissenters  are  all  Jesuits  at 

heart  is  only  to  be  explained  upon  this  view  of  what 

was  really  the  mind  of  the  Anglican  divines.  The 

term  is  not  employed  merely  as  an  opprobrious 

epithet.    It  is  the  expression  of  a  deep  sense,  that  ^ 

since  the  real  object  of  Jesuitism  is  to  loose  the 

bonds  of  civil  allegiance,  all  who  hold  doctrines  of 

resistance  are  believers  in  the  only  essential  and 

distinctive  doctrines  of  Loyola  and  Rome\  The 

purely  theological  points  on  which  Dissenters  differ 

even  more  widely  than  Anglicans  from  the  Roman 

Church  may  be  ignored  as  mere  details,  which  do 

not  concern  the  main  position. 

But  here  a  distinction  must  be  made.   The  theory  Some 

of  most  English  Nonconformists  and  of  the  average  j^^^^'^^"^ 

Whig  politician,  is  open  to  the  taunts  of  the  royalist  agree  with 

on  the  score  of  its  likeness  to  the  Jesuit  doctrme  Qjiiy 

of  resistance.    If  resistance  in  any  form  for  any  cause  Mowing 

1-1  resistance. 
be  damnable,  and  if  it  be  Popery  to  teach  it,  then 

Whigs  like  Locke  and  Sidney,  and  Parliamentarians 
like  Prynne  may  be  accused  of  Popery.  It  is  true 
that  religion  is  one  of  the  main  grounds  for  re- 
sistance in  practice,  but  at  least  neither  Whigs 
nor  Independents  believe  that  the  state  is  to  be 

and  Libertines,  to  the  end  they  might  run  on  the  more  licentiously 
and  carelessly),  shaken  off  the  yokes,  and  exempted  themselves 
from  being  under  all  civil  power?"  (Apology,  75).  In  The  Apostate 
Parliament  occurs  the  query,  "  Setting  aside  the  Romish  faith  and 
the  vow  of  blind  obedience,  tell  me  wherein  these  men  differ  from 
the  disciples  of  Ignatius  Loyola?  Why  only  these  are  Popish  and 
they  Protestant  Jesuits?  "    See  Appendix  C. 

1  On  the  political  theory  of  the  Jesuits  of.  From  Gerson  to 
Grotius,  Chap,  v. 


186  PASSIVE  OBEDIENCE  AND  THE 


controlled  in  the  interests  of  a  religious  body.  They 
would  not  fetter  its  action,  as  the  Papalist  would  do. 
Indeed,  as  the  notion  of  toleration  begins  to  develope, 
any  general  theory  of  clerical  supremacy  becomes 
an  impossibility.  That  men  view  the  mere  teach- 
ing of  resistance  as  evidence  of  Popery  is  indicative 
of  a  state  of  feeling,  difficult  for  us  to  bring  into 
imagination,  when  non-resistance  is  regarded  as  the 
most  essential  element  of  religion. 
Preshy-  But  in  regard  to  one  ecclesiastical  system  other 

advances  than  the  Roman,  the  taunt  of  Jesuitism  is  more 
claims      truly   iustified.    Presbyterianism,  as  exhibited  in 

similar  to  ^  . 

those  of  Geneva  or  Scotland,  veritably  claims,  as  did  the 
Rome.  Papacy,  to  control  the  state  in  the  interests  of  an 
ecclesiastical  corporation.  The  cardinal  error  of  the 
royalist  writers,  when  viewed  from  the  modem 
standpoint,  is  that  in  formulating  the  theory  of 
the  Divine  Right  of  Kings  against  that  of  the  Pope, 
they  were  driven  into  the  position  of  supporters  of 
despotism  and  oppression.  However  much  this  is 
to  be  condemned,  it  was  probably  inevitable.  Cer- 
tainly it  may  seem  to  us  a  strange  thing  that  in 
defending  the  secular  power  against  the  spiritual, 
men  should  ignore  or  minimize  the  dangers  of  the 
secular  power  itself  becoming  a  tyranny.  But  it  is 
not  strange,  that  those  who  were  inspired  by  a  pas- 
sionate indignation  at  the  preposterous  assumptions 
of  the  Papacy,  should  have  been  no  less  hostile  to  the 
political  side  of  the  Presbyterian  system.  "  New 
presbyter  is  but  old  priest  wTit  large "  is  a  maxim 
of  deeper  import  than  is  sometimes  imagined. 
It  is  the  felicitous  expression  of  men's  sense  of 


CHURCH  OF  ENGLAND 


187 


the  danger  still  to  be  apprehended  from  clericalism.  A  theory 
The  same  mischievous  claims  to  place  secular  calism  in 
governments  under  the  heel  of  an  ecclesiastical  politics. 
organization,  as  had  led  to  so  much  conflict  in 
the  Middle  Ages  and  were  only  finally  overthrown 
by  the  Reformation,  had  reappeared  in  a  yet  more 
irritating  form  in  the  Presbyterian  system.  The  con- 
dition of  Geneva  under  Calvin  was  an  object-lesson, 
which  neither  statesmen  nor  patriotic  churchmen 
were  likely  to  ignore.  Affairs  in  Scotland  would 
form  a  sufficient  warning,  if  any  should  be  tempted 
to  fall  out  of  the  frying-pan  into  the  fire,  and  after 
throwing  off  one  ecclesiastical  tyranny  to  rivet  upon 
their  necks  another,  which  would  differ  from  it 
mainly  in  being  narrower,  more  searching,  more 
inquisitorial,  more  ubiquitous,  and  less  careful 
of  the  larger  needs  and  hopes  of  humanity,  less 
likely  to  force  upon  states  and  their  rulers  the  sense 
that  sectional  and  local  interests  are  not  the  only 
rule  of  right.  The  Papacy,  whatever  might  be  said 
against  it,  was  at  least  a  standing  witness  to  the 
need  of  international  morality,  and  might  be  sup- 
posed to  have  the  advantage  of  viewing  political 
problems  from  a  universal  standpoint.  Despite  the 
evils  and  mischief  attendant  on  the  political  claims 
of  the  Popes,  it  might  be  contended  with  some 
plausibility  that  these  claims  were  the  only  se- 
curity the  mediaeval  world  possessed  for  something 
like  justice  and  fair-dealing  between  kings  and 
princes.  The  fear  of  Papal  excommunication  un- 
doubtedly tended  to  confine  aggi'ession  within  limits  ^ 
and  to  make  rulers  temper  expediency  with  right 


188  PASSIVE  OBEDIENCE  AND  THE 


reason.  No  such  defence  could  be  made  for  the 
Presbyterian  system.  It  would  have  controlled  the 
action  of  the  state  more  completely  than  did  the 
Papacy,  while  it  would  have  strengthened,  instead 
of  diminishing  all  the  tendencies  that  made  for  a 
narrow  patriotism,  and  that  would  lead  men  to  regard 
local  and  provincial  feeling  as  all  important.  The  posi- 
tion of  the  Papacy  could  not  fail  to  lift  it  in  a  great 
degree  above  the  limitations,  that  must  surround 
and  sometimes  fetter  the  thought  and  action  of  the 
national  statesman.  But  there  was  no  such  cause  at 
work  in  the  Presbyterian  system,  and  its  rulers  would, 
so  far  as  politics  were  concerned,  have  exhibited 
most  of  the  defects,  without  any  of  the  merits  of 
clericalism.  Unless  it  be  contended  that  their 
possession  of  a  purer  system  of  theology  would 
ensure  the  wisdom  of  their  political  action,  it  can 
hardly  be  doubted  that  the  Presbyterian  system, 
if  allowed  to  run  its  course,  would  have  made 
greater  havoc  of  politics,  than  did  the  Papacy.  It 
would  have  subordinated  all  state  action  to  consider- 
ations at  once  narrowly  local  and  rigidly  ecclesiastical, 
rrhus  it  is  not  surprising  that  the  ablest  defenders 
of  the  doctrine  of  Divine  Right  are  at  pains  to 
shew  not  merely  that  the  Papal  claims  would  dissolve 
the  bonds  of  civil  society,  but  that  they  go  on, 
as  does  Nalson,  to  prove  that  the  'Presbyterian 
Discipline '  is  equally  destructive  not  merely  of 
royal  power,  but  of  Parliamentary  authority  and  the 
liberty  of  the  subjects  '  The  two  systems  of  Papal 

1  "There  may  be  many  particular  interests  which  may  be 
disadvantageous  to  the  safety,  security  and  happiness  of  the 


CHURCH  OF  ENGLAND 


189 


supremacy  and  Presbyterian  'discipline'  are  both 
clerical  in  essence.  They  both  assert  a  claim  by 
Divine  Right  for  God's  minister,  whether  he  be  the 
Pope  or  the  office-bearers  in  the  Presbyterian  body ; 
this  claim  is  to  be  superior  to  all  civil  government 
whatever.  Bishop  Bramhall's  tract  A  warning  to  the 
Church  of  England  is  an  able  exposition  of  this 
view.  In  this  is  shewn  the  political  danger  of 
Presbyterianism,  as  an  ecclesiastical  system  claiming 
dominion  by  Divine  Right  over  the  secular  power. 
The  latter  part  of  Nalson's  Common  Interest  of  King 
and  People  is  a  singularly  lucid  and  well-balanced 
statement  of  the  same  position. 

Nor  do  these  writers  attribute  to  the  Presby-  iiiustra- 
terians  any  pretensions  which  they  do  not  make  for  p°^"jy{ 
themselves.    Cartwxight's  works  are  almost  as  full  terian 
as  those  of  Bellarmine  of  the  claim  to  control  the  c^art-' 
State  in  the  interests  of  the  Church ;   in  many  wHght. 
respects  they  form  an  exact  parallel  to  Papalist 
pretensions.    The  magistrate  is  the  Lord's  officer, 
and  must  wield  the  sword  as  the  Church  directs, 
persecute  all  '  idolatry '  at  its  bidding,  and  grant  no 

Imperial  Crown  of  this  Eealm  of  Great  Britain,  and  its  other 
dominions,  as  well  as  to  the  liberty  and  property  of  the  People ; 
but  there  are  two  which  are  directly  and  fundamentally  opposite 
and  contrary  to  them,  both  in  their  principles  and  practices,  and 
these  are  the  pretensions  of  a  universal  supremacy  and  spirituo- 
temporal  monarchy  of  the  Church  of  Eome  or  Papacy  on  the  one 
band,  and  the  Democratic  Presbyterian  on  the  other.  That  both 
these  are  utterly  inconsistent  with  the  safety  and  very  essence  of 
monarchy  and  particularly  with  that  of  these  nations,  as  also  with 
the  peace,  happiness,  liberty  and  property  of  the  subjects  is  that 
which  I  hope  to  prove"  (Nalson,  The  Common  Interest  of  King  and 
People,  173). 


190  PASSIVE  OBEDIENCE  AND  THE 


pardon  upon  the  recantation  of  a  heretic.  He  is 
to  be  guided  by  the  example  of  Constantine  the 
Great,  who  persecuted  in  favour  of  orthodoxy  \  The 
'discipline'  is  universal  and  immutable^  and  is  to  be 
maintained  by  the  magistrate^;  the  civil  magistrate 
is  to  provide  some  sharp  punishment  for  all  who 
contemn  the  censure  of  the  Church  In  fact  the 
State  is  to  wield  the  temporal  sword,  and  the  Church 
to  dictate  how  it  shall  be  wielded.  The  civil  magis- 
trates as  they  are  the  nurses,  so  they  are  the  servants 
of  the  Church  and  must  throw  down  their  crowns 
before  it^  Since  the  Church  is  prior  to  the  State, 
the  constitution  of  the  latter  must  be  fashioned  and 
made  suitable  unto  the  Church  I  Church  government 
is  to  be  the  model  of  the  civil  State.  Cartwright 
knows  that  the  '  discipline  '  is  regarded  in  the  light  of 
a  new  popedom  and  tyranny  in  the  Church  ;  but  so  to 
term  it  is  blasphemy'.  The  author's  views  are  as 
definitely  theocratic,  as  those  of  the  mediaeval  Papacy. 
He  is  not  merely  using  phrases  to  emphasize  the 
spiritual  subjection  of  the  prince,  as  a  layman,  to 
the  officers  of  the  Church ;  but  he  teaches  that  the 
prince  is  merely  the  minister  and  executant  of  the 
Church's  decrees.  Finally,  his  object  being  to  move 
the  people  to  obedience,  he  shews  no  sort  of  in- 
clination to  popular  government  or  liberty  as  such. 
The  only  liberty  he  desires  is  the  liberty  of  the 


1  Cartwright,  Second  Reply,  cxv.  sqq. 

2  Declaration  of  Discipline,  13.  ^  Ibid.  187. 
■*  Second  Admonition  to  Parliament,  49. 

6  Reply  to  Whitgift,  144.  "  Ibid. 

'  Demonstration  of  Discipline,  75. 


CHURCH  OF  ENGLAND 


191 


office-bearers  of  the  Church  to  control  the  action  of 
the  State  and  to  use  its  forces  at  their  will.  The  duty 
of  private  individuals  is  merely  that  of  obedience^ 

Still  stronger  are  the  views  of  Christopher  Goodman. 
Goodman.  His  book  How  to  obey  or  disobey  was 
written  in  1558  against  the  tyranny  of  the  '  idol- 
atress '  Mary,  and  the  monstrous  regiment  of  women, 
although  there  is  flattery  of  Elizabeth,  "  that  godly 
lady  and  meek  lamb  void  of  all  Spanish  pride  and 
stranger  blood."  Goodman  will  have  nothing  of  pas- 
sive obedience^;  idolatry  must  be  resisted  by  forced 
Like  the  Papalists,  Goodman  conceives  of  God  as 
the  true  recipient  of  civil  obedience,  and  of  all  earthly 
governments  as  subordinate  to  His  rule,  and  liable  to 
be  overturned  at  any  moment,  if  they  transgress  it*. 
Of  the  nature  of  God's  ordinances  and  of  the  question 
as  to  whether  or  no  they  have  been  transgressed,  he 
would  apparently  make  the  rulers  of  the  Church  the 
sole  and  irresponsible  arbiters.  For  princes  are  not 
to  suffer  their  subjects  to  be  ignorant  of  God's  law, 
but  to  enforce  theological  doctrine  universally^  On 
this  condition  obedience  is  to  be  paid  to  the  magis- 
trate and  no  tyranny  will  absolve  from  the  duty". 
As  in  the  view  of  Cartwright  or  Bellannine,  the 
subject's  duty  is  mere  obedience,  but  obedience  to 
an  ecclesiastical  corporation ;  only  secondarily  and 
under  qualifications,  will   obedience   to  the  civil 

1  Declaration  of  Discipline,  185.   The  passage  is  quoted  below, 
p.  222. 

*  How  to  obey,  30,  64.  3  /jj^.  77, 

*  Ibid.  44  sqq.,  60,  110,  118,  139. 

5  Ibid.  105.  «  Ibid.  110. 


192  PASSIVE  OBEDIENCE  AND  THE 


magistrate  become  a  duty.  The  State  exists  solely 
on  sufferance;  and  the  officers  of  the  Church  may 
meddle  with  its  policy  and  upset  its  organization  at 
their  pleasure.  For  no  heretic  is  truly  a  king ;  not 
the  clearest  legal  right,  neither  election  nor  succes- 
sion, can  give  any  title  to  a  claimant  unless  in  the 
opinion  of  this  self-constituted  authority,  he  "be  a 
promoter  and  setter  forth  of  God's  glory'."  The 
contention  that  neither  prince  nor  people  are  fi-ee, 
but  both  are  subject  to  God's  law  might  indeed  be 
used  to-day  in  an  innocent  sense ;  but,  as  in  the 
case  of  all  teachers  of  the  political  supremacy  of 
ecclesiasticism,  in  Goodman's  mouth  the  words  imply 
a  claim  on  the  part  of  an  irresponsible  person  or 
body  of  persons,  not  experts  in  politics,  to  control 
the  action  of  the  State,  in  whatever  direction  they 
please.  The  King  is  to  persecute  and  the  people 
to  rebel  at  the  bidding  of  the  Kirk  I  There  is  no 
appeal  from  their  decision  as  to  the  character  of  the 
policy  that  will  promote  God's  glory  or  will  hinder 
it.  How  far  these  claims  would  have  been  carried, 
if  men  such  as  Goodman  had  been  given  a  free  hand, 
may  be  gathered  from  some  hints  which  he  lets 
drop.  One  of  the  reasons  for  resisting  Mary  is  her 
foreign  policy ;  since  it  is  plainly  forbidden  by 
God's  word  to  make  war  in  alliance  with  Spain 

'  How  to  obey,  51,  58.  Goodman's  contention  is  that  an 
idolatrous  and  persecuting  king  is  to  be  regarded  as  a  mere  private 
man,  to  whom  no  obedience  is  due  (139).  This  is  on  a  par  with 
Bellarmine's  view  that  the  Pope  does  not  command  subjects  to 
disobey  their  sovereigns,  for  the  Papal  deposition  ipso  facto 
destroys  the  kingly  character. 

^  Ibid.  Chap.  XI. 


CHURCH  OF  ENGLAND 


193 


against  France  and  "  their  own  brethren  the  Scots," 
all  Englishmen  are  bidden  to  throw  off  the  yoke'. 
Nor  does  Goodman  stop  here,  but  devotes  many 
pages  to  a  glorification  of  Sir  Thomas  Wyatt,  and 
the  praise  of  his  rebellion'. 

Here,  then,  in  the  waitings  of  Cartwright  and 
Goodman  we  have  clear  proof  that  the  political 
claims  of  Presbyterianism  were  as  oppressive,  as 
tyrannical  and  as  preposterous  as  those  of  Rome. 
The  two  systems,  Papal  and  Presbyterian,  are  alike 
in  that  they  both  regard  the  State  as  the  mere 
handmaid  of  an  ecclesiastical  corporation,  and  would, 
in  the  last  resort,  place  the  supreme  direction  of 
j)olitics  in  the  hands  of  the  rulers  of  the  Church. 
They  differ  only  in  the  character  of  the  theological 
systems,  in  the  interests  of  which  the  policy  of  the 
secular  government  is  to  be  regulated.  The  history 
of  Scotland  affords  further  evidence  of  the  claims 
made  and  exercised  under  this  system.  And  those 
who  had  most  to  do  with  the  establishment  of  the 
Presbyterian  Kirk  in  Scotland  are  most  emphatic  in 
their  announcement  of  their  pretensions  to  subject 
the  policy  of  the  State  to  their  own  caprice.  John  Knox. 
Knox  declares  that  no  idolater  (by  which  is  meant 
a  person  whose  theological  views  differ  from  his 
own)  ought  to  be  promoted  to  any  public  office ; 
that  no  oath  can  bind  men  to  obey  such  an  one ; 
and  that  any  prince,  who  after  appointment  becomes 
an  idolater,  may  be  justly  opposed'.  In  the  First  Book 

1  How  to  obey,  173.  2  204  sqq. 

*  Swnmary  of  the  proposed  Second  Blast  of  the  Trumpet. 
Works,  IV.  539. 

F  13 


194  PASSIVE  OBEDIENCE  AND  THE 


First  Book  of  Discipline  it  is  declared  that  rulers  and  ruled  must 
c^h'n«.  alike  be  subject  to  discipline S  and  that  idolatry 

and  all  monuments  thereof  must  be  suppressed*;  that 
punishment  (death  for  choice)  should  be  appointed 
for  all  such  as  disobeyed  the  superintendents,  and  for 
profaners  of  the  Sacraments'.  Now  when  these  are 
regarded  as  directions  from  the  Kirk  to  the  State 
in  order  to  guide  its  legislation,  it  will  readily  be 
seen  how  great  is  the  power  claimed.  In  subjecting 
all  rulers  to  'discipline,'  a  civil  supremacy  is  in 
reality  claimed  for  the  Kirk ;  for  excommunication 
carried  with  it  civil  disabilities ;  it  was  immediately 
followed  by  "  letters  of  horning." 
Second  The  Second  Book  of  Discipline  claims  for  the 

TH^cipUne,  spiritual  power  an  indirect  temporal  supremacy, 
1581.  very  similar  to  that  claimed  by  Bellarmine  for  the 
Pope.  The  method  of  argument  is  not  very  different 
in  the  two  cases.  The  magistrate  commands  ex- 
ternal things  for  external  peace  and  quietness  among 
his  subjects ;  the  minister  handles  external  things 
only  for  conscience'  sake^  The  magistrate  is  to 
command  the  minister  to  observe  the  rule  com- 
manded in  the  world,  and  to  punish  the  transgressors 
by  civil  means.  The  ministers  exercise  not  the 
civil  jurisdiction,  but  teach  the  magistrate  how  it 
should  be  exercised  according  to  the  word^  Eccle- 
siastical power  is  distinguished  from  civil  by  the  fact 
that  it  flows  immediately  from  God*. 

^  VII.  3.    The  First  Book  of  Discipline  is  to  be  found  in  the 
Works  of  John  Knox,  ii.  183  sqq. 

2  Ibid.  in.  3  Ibid.  p.  258. 

*  Second  Book  of  Discipline.  1. 11.    Calderwood  (ill.  529  sqq.). 

5  Ibid.  14.  «  Ibid.  5. 


CHURCH  OF  ENGLAND 


195 


All  this  may  seem  little  more  than  a  declaration 
of  the  freedom  of  the  Kirk,  and  of  the  divergent 
spheres  of  Church  and  State.  It  might  be  so  in  an 
age  when  all  religious  opinions  are  tolerated.  But 
at  a  time  when  persecution  was  recognized  as  a  duty, 
it  amounts  to  a  claim  on  behalf  of  the  Kirk  for 
complete  supremacy.  The  civil  magistrate  is  bound 
to  suppress  all  teaching  not  recognized  by  the  Kirk, 
to  enforce  its  commands,  to  see  to  the  execution  of 
its  views  as  to  the  administration  of  God's  Word 
and  Sacraments — all  this,  according  to  the  theory 
of  Knox  and  his  successors,  on  pain  of  deposition. 
The  Kirk  is  to  be  the  nation  in  its  spiritual  capacity, 
yet  over  this  vast  body  the  State  is  to  have  no 
authority,  but  is  merely  in  the  position  of  an  execu-  ^ 
tive  appointed  to  execute  the  will  of  the  oflfice- 
bearers.  If  the  Prince  will  not  obey  the  officers  of 
the  Kirk,  and  employ  all  the  machinery  of  govern- 
ment to  execute  their  decrees,  he  is  to  be  deposed^  ] 

We  are  told  that  the  magistrate  is  to  assist  and 
maintain  and  justify  the  jurisdiction  of  the  Kirk. 
There  is  no  qualification.  The  ministers,  on  the  other 
hand,  are  to  assist  the  Prince  in  all  things  agreeable 
to  God's  word\  Thus  to  the  ministers  is  left  the  final 
interpretation  of  the  limits  of  obedience,  and  the  magi- 
strate becomes  the  mere  tenant-at-will  of  the  Kirk. 

Further,  in  the  Second  Book  of  Discipline  the 
magistrate  is  bidden  to  fortify  the  godly  proceedings 
of  the  Kirk ;  to  see  that  its  public  estate  and 
ministers  be  maintained  ^  and  so  to  secure  the  Church 
against  false  teachers  and  hirelings,  dumb  dogs  and 
1  Second  Book  of  Discipline,  i.  15,  ^  Ibid.  x.  2. 

13—2 


# 


196  PASSIVE  OBEDIENCE  AND  THE 


idle  bellies  1;  to  punish  civilly  those  that  will  not  obey 
the  censure  of  the  Kirk,  "  without  confounding  always 
the  one  jurisdiction  with  the  other ^"  i.e.  maintaining 
his  allotted  position  of  subserviency.  He  is  to  make 
laws  for  the  advancement  of  the  Kirk  without  usurp- 
ing anything  that  pertains  not  to  the  civil  sword'. 

These  constitutions  in  fact  invest  the  Kirk  with 
the  absolute  freedom  and  right  of  establishing  its 
constitution  and  discipline  in  matters  small  and 
great  and  then  of  employing  the  secular  arm  to 
enforce  them  on  a  reluctant  nation.  For  where  the 
ministry  of  the  Kirk  is  once  lawfully  constituted,  all 
godly  princes  ought  to  obey  the  voice  and  reverence 
the  majesty  of  the  Son  of  God*.  The  Book  proceeds 
to  quote  from  the  statute  declaring  that  no  other 
ecclesiastical  jurisdiction  should  be  acknowledged, 
but  that  which  is  and  shall  be  in  the  Reformed 
Kirk  and  flowing  therefrom^ 
The  It  is  this  that  constitutes  the  real  objection  from 

^perfecu-  statesman's  point  of  view  to  the  Presbyterian 

tion  is      system,  and  the  justification  of  the  theory  of  the 

the  tbclI  •  .  • 

cause  of  Divine  Right  of  Kings  and  of  much  that  seems 
the  conflict  arbitrary   in   the   treatment    of   religious  bodies 

1  Second  Book  of  Discipline,  x.  3.       ^  Ibid.  4.       ^  Ibid.  7. 

*  A  power  in  the  Prince  of  reforming  the  Church  when  cor- 
rupted is  indeed  admitted  (Ibid.  7),  but  this  is  merely  a  saving 
clause  by  which  a  Eevolution  in  favour  of  Presbyterianism  may 
be  admitted.  Knox  in  attacking  the  Roman  Church  where  estab- 
lished asserts  emphatically  the  claims  of  the  civil  magistrate 
(Letter  to  the  Queen  Regent,  Works,  iv.  443).  Like  the  Pope,  he 
will  admit  the  power  of  the  civil  magistrate,  on  condition  of  its 
being  exercised  in  subserviency  to  himself. 

"  Second  Booh  of  Discipline,  xi.  16. 


CHURCH  OF  ENGLAND 


197 


by  the   State.    The  acts  of  Henry  VIII.   and  between 

Elizabeth  may  appear  harsh,  and  the  submissio  state, 

cleri  may  be  regarded  as  depriving  the  Church 

of  its  due  rights.    Yet  no  less  could  have  been 

claimed  at  the  time  by  any  self-respecting  monarch. 

For  at  that  time  toleration  was  not  recognized 

as  a  principle,  and  it  was  a  maxim  that  the  nation 

in   its   spiritual  capacity  forms   one  corporation, 

subject  to  one  ecclesiastical  jurisdiction  and  one 

system  of  discipline.    Under  such  conditions  it  can 

never  be  other  than  dangerous  for  the  State  to  give 

the  spiritual  power  a  free  hand.   For  it  will  fetter 

the  action  of  the  State  in  a  thousand  ways  and  will 

be  repeatedly  claiming  to  "  handle  external  things 

for  conscience'  sake."    It  may,  as  in  Scotland,  set 

up  an  inquisitorial  jurisdiction  in  every  village,  and 

demand  the  assistance  of  the  State  in  punishing 

any  and  every  breach  of  what  it  regards  as  the 

moral  law,  from  adultery  to  Sabbath-breaking.  It 

may  claim,  as  in  Scotland,  that  the  royal  pardon 

shall  never  issue  for  capital  crimes ;  it  may  demand, 

as  in  1582,  that  no  alliances  shall  be  made  with 

Roman  Catholic  powers  ^   The  Papacy  in  the  middle! 

ages  claimed  to  regulate  international  differences,  *^ 

and  was  constantly  encroaching  upon  the  sphere  of 

the  State.    But  hardly  at  the  period  of  its  proudest 

exaltation  did  it  claim  to  make  the  civil  power  so 

'  Calderwood,  iii.  685.  The  General  Assembly  demanded  that 
"no  society,  league  or  friendship  be  made  with  Papists  in  France, 
Italy,  Spain,  or  other  countries,  by  common  or  particular  outset." 
The  whole  tenor  of  the  articles  presented  at  this  time  to  the  King 
is  expressive  of  the  determination  of  the  Kkk  to  unfettered 
supremacy. 


198  PASSIVE  OBEDIENCE  AND  THE 


completely  its  slave  or  to  interfere  so  minutely  with 
the  private  life  of  individuals,  as  did  the  maintainors 
of  "the  discipline."  However,  opinions  may  differ 
as  to  which  of  the  two  systems  was  the  more 
meddlesome  and  irritating  tyranny.  But  there  can 
be  no  doubt  that,  with  whatever  differences  in 
degree,  both  are  alike  in  kind.  Each  puts  forward 
a  claim  by  Divine  Right  to  subject  the  secular 
power  to  the  spiritual,  to  make  the  clergy  the 
ultimate  arbiters  of  political  action.  ] 
The  claim  And  the  claim  cannot  be  admitted.  The  English 
Um^iruid-  i^^tion  had  ever  been  jealous  of  clericalism.  It  had 
missible.  refused  to  surrender  the  right  and  liberty  of  the 
English  Crown  to  the  Popes,  and  had  upheld  its 
independence  in  matters  of  politics,  unawed  by  the 
majestic  traditions  and  splendid  imperiousness  of 
the  mediaeval  Papacy — this  at  a  time,  when  the 
spiritual  authority  of  the  Pope  was  unquestioned. 
England  had  in  the  past  no  quarrel  with  the 
religious  pretensions  of  the  Papacy ;  but  she  was  no 
more  inclined,  than  the  French  King  or  the  Emperor, 
to  admit  its  political  claims.  It  was  not  likely  that 
she  would  allow  a  similar  claim,  presented  in  the 
less  lovely  form  of  the  Presbyterian  discipline. 

In  the  Presbyterian  doctrines,  as  developed  by 
Melville  in  Scotland  and  Cartwright  in  England,  there 
was  however  one  distinction  recognized,  which  went  far 
to  minimize  its  dangers.  These  writers  all  held  the 
doctrine  of  the  two  kingdoms,  and  did  not  make  the 
mistake  common  to  all  parties  in  the  middle  ages, 
and  repeated  by  men  so  different  as  Laud  and  Luther. 
That  error  lay  in  treating  Church  and  State  as  merely 


CHURCH  OF  ENGLAND 


199 


different  departments  of  the  one  great  vsociety,  and 
with  this  view  either  an  ecclesiastical  or  a  civil 
tyranny  is  almost  inevitable.  Knox  held  the  older 
view.  In  the  same  way  the  doctrine  of  the  indirect 
power  of  the  Papacy,  as  developed  by  Bellarmine, 
leaves  it  possible  at  least  in  theory  to  admit  the 
freedom  and  inherent  rights  of  the  civil  Stated 

Against   either  claim   the  same  controversial  The  State 
method  was  necessary.    It  was  needful  to  claim  on  meeuts 
behalf  of  the  secular  power  complete  supremacy  and  opponents 

....  1  -11    1  "y 

the  institution  of  God.  Not  until  the  danger  was  ing  entire 
past  of  a  relapse  into  Popery  or  Presbyterianism, 
can  the  notion  of  Divine  Right  be  said  to  have 
accomplished  its  work.  The  case  of  France  is 
precisely  similar.  On  the  one  hand,  the  Papacy 
claimed  to  excommunicate  and  depose  the  King, 
and  to  keep  the  rightful  heir  out  of  his  inheritance. 
On  the  other  hand,  the  Huguenots  made  themselves 
the  mouthpiece  of  a  recrudescent  feudalism,  and 
strove  for  an  imperium  in  imperio  with  quasi- 
sovereign  rights  in  their  strong  places.  In  the 
result  both  in  France  and  England,  the  central 
power  succeeded  in  establishing  its  supremacy,  even 
to  the  point  of  persecuting  the  teachers  of  all 
doctrines  which  it  regarded  as  harmful. 

The  passages  cited  as  evidence  of  the  Presby-  The 
terian  theory  may  seem  patient  of  a  different  inter- 
pretation.    They  may  be  defended  as  mere  humble  never 
advice  to  the  State  from  persons  acting  with  purely  material 
spiritual  weapons  and  claiming  no  coercive  authority,  sword 
John  Knox  himself  could  not  wield  the  sword,  but  disposal. 

1  Of.  Appendix  III. 


200  PASSIVE  OBEDIENCE  AND  THE 


was  only  able  to  advise  subjects  in  certain  cir- 
cumstances to  depose  their  prince.  The  Kirk  neither 
possesses  nor  claims  the  use  of  the  material  sword.  It 
merely  demands  that  it  shall  be  used  in  its  interests. 
Precisely.  Yet  the  position  of  the  Papacy  in  regard 
to  European  nations  was  at  no  time  different.  Save 
in  the  Papal  states,  the  Pope  had  no  direct  material 
power.  The  army  under  the  immediate  command 
of  the  Pope  or  his  delegates  would  scarcely  have 
been  sufficient  to  crush  the  smallest  of  recalcitrant 
sects,  and  could  have  made  no  head  against  a 
hostile  nation.  When  the  mediaeval  Papacy  is 
called  a  tyranny,  it  is  too  often  forgotten  that  how- 
ever mischievous  its  effects  on  political  action,  it 
was  emphatically  an  instance  of  government  by 
consent.  Whether  or  no  the  Popes  from  Gregory  VII. 
to  Boniface  VIII.  wielded  an  authority  that  was 
both  despotic  in  its  nature  and  oppressive  in  its 
incidence,  it  is  certain  thatj  their  despotism  did  not 
^  rest  upon  physical  force,  but  upon  purely  spiritual 
or  moral  sanctions.  The  Papacy  never  as  a  matter 
of  practice  wielded  or  claimed  to  wield  the  material 
sword.  It  merely  demanded  that  physical  force 
should  never  be  employed,  save  with  its  approval. 
Presbyterianism  made  precisely  the  same  demand. 
The  AH  that  the  Pope  can  do  by  a  bull  of  excom- 
spmtual    niunication  is  to  declare,  as  God's  vicar,  that  men 

power 

can  only  are  no  longer  bound  in  theory  and  for  conscience' 
withlold  obey  their  sovereign.    They  may  not  im- 

the  moral  probably  be  bound  to  obey  him  in  practice  and  by 
of  govern-  the  strength  of  the  material  sword.  The  English 
ment.       Catholics,  or   those   of  them   who   favoured  the 


CHURCH  OF  ENGLAND 


201 


deposing  power,  were  so  bound ;  they  were  "  subject 
for  wrath."    But,  admitting  the  Pope's  claims,  no 
one  will  be  bound  for  conscience'  sake,  so  soon  as 
he  has  launched  a  bull  of  excommunication.  pThe  And  so 
object,  therefore,  of  the  opponents  of  either  system  ^ylli^y. 
must   be   to   assert,  that,  despite   the  Papal  or  terianism. 
Presbyterian  attempt  to  exercise  the  deposing  power.  Hence 
the  sanctions  of  conscience  still  remain,  and  that  ^^fYhe*^'^'^^ 
the  moral  claim  of  the  State  to  the  allegiance  of  its  State  must 

,.,  .         .,,  claim  that 

subjects  may  not  be  impaired  by  ecclesiastical  the  moral 
censure.;  Throughout  the  Middle  Ages,  in  the  Wars  s'lnction _ 

-T  -11  ■  11-1      IS  on  their 

of  the  League,  in  the  plots  agamst  Elizabeth,  it  has  side. 
been  repeatedly  proved  that  the  character  of  men's 
civil  obedience  will  be  affected  by  'other  motives 
than  the  material  sword  or  the  legal  sanction  of 
government,  "  wrath."  The  success,  however  partial, 
of  the  Popes  or  of  the  Presbyterian  leaders  has 
proved  that  the  moral  sanction,  conscience,  is  a  real 
power  in  strengthening  or  loosening  the  bonds  of 
allegiance.  This  sanction  the  supporters  of  clerical- 
ism claim  to  manipulate  at  their  pleasure.  The 
defenders  of  the  freedom  of  the  State  are  therefore 
perpetually  driven  to  assert,  that  it  is  not  lost  or 
gained  according  to  the  theological  opinions  of  the 
ruler,  that  the  State  has  a  Divine  Right  to  exist 
despite  the  disapproval  of  the  Church,  that  obedience 
to  the  secular  power  is  due  not  merely  for  "wrath 
but  for  conscience'  sake."  Obedience  not  merely  for 
wrath,  but  for  conscience'  sake  has  been  asserted  to  be 
the  right  of  the  Church  alone.  The  moral  claim 
to  obedience,  as  distinct  from  the  physical  power  of 
enforcing  it,  does  not  in  itself  belong  to  the  State, 


202  PASSIVE  OBEDIENCE  AND  THE 


t. 


say  the  supporters  of  clericalism,  save  in  so  far  as 
the  State  is  the  necessary  instrument  of  the  Church. 
The  theory  of  the  Divine  Right  of  Kings  is  the 
contradiction  of  this ;  it  asserts  that  the  State  has  a 
claim  to  obedience  on  moral  and  religious  grounds, 
that  it  has  a  right  to  exist  as  in  accordance  with 
human  nature  and  God's  will,  and  is  based  on  some- 
thing better  than  the  right  of  the  stronger^  Cleri- 
calism makes  capital  out  of  its  position  as  the  guide 
of  men's  consciences,  and  would  subject  states  and 
politics  to  a  meddlesome  control.  Hence,  if  political 
security  is  to  be  obtained,  conscience  must  be  as- 
serted to  be  on  the  side  of  civil  obedience,  and 
universal  supremacy  by  God's  grant  asserted  for  the 
State.  Otherwise  ecclesiastics  will  at  once  step  in 
and  claim  to  decide  the  cases  in  which  resistance 
may  be  lawful. 

The  State  Yet  in  doing  this  the  State  makes  large  claims. 
asserts  Its       gj.g^  asserts  its  absolute  competence  to  prescribe 

authority  ^  " 

in  matters  forms  of  religious  belief  or  at  least  of  practice,  and 
'yion^  to  set  up  Or  abolish  forms  of  ecclesiastical  organi- 
zation. It  is  only  when  the  State  consents  to  be 
guided  in  this  matter  by  experts,  i.e.  the  Church, 
that  any  religious  body  will  allow  such  a  claim  in  its 
fulness.  Yet  the  omni-competence  of  the  State  had 
to  be  asserted,  and  asserted  as  of  Divine  Right.  It 
would  doubtle-ss  be  supported  in  the  main  only  by 
those  who  feel  morally  convinced  that  the  State  will 
not  as  a  matter  of  fact  prohibit  their  own  religious 
belief 

Erastian  This  is  in  part  the  explanation  of  the  Erastian 
o/"/maf)i  language  of  certain  Caroline  divines.    They  exalt 


CHURCH  OF  ENGLAND 


203 


the  supremacy  of  the  Crown ;  they  declare  its  com-  supporters 
petence  to  presci'ibe  forms  of  faith;  and  claim  Divine  %ifht.^^ 
Right  for  these  powers.  By  this  is  merely  meant  a 
claim  of  the  secular  power  to  be  free  in  theory;  there 
is  not  intended  or  implied  any  claim  that  the  State 
in  practice  shall  decide  religious  matters  arbitrarily 
or  without  consulting  the  heads  of  the  Church. 
Doubtless  much  of  Barrow's  Treatise  of  the  Pope's 
Supremacy  or  Jackson's  Treatise  of  Christian  Obedi- 
ence is  Erastian  in  tone.  Yet  in  reality  what  they 
were  aiming  at  was  the  legal  omnipotence  of  the 
sovereign  power.  An  exponent  of  the  same  view  at 
the  present  day  might  well  take  as  an  illustration  of 
the  theoretical  powers  of  Parliament  the  undoubted 
fact  that  at  any  moment  it  might  legally  abolish  the 
Christian  religion  and  introduce  Mohammedanism 
under  the  sanction  of  torture.  Yet  such  a  writer 
would  not  be  held  to  mean  that  Parliament  could 
effect  this  change,  or  that  it  would  dream  of  attempt- 
ing it.  Such  an  act  would  overpass  what  have 
been  called  the  external  and  the  internal  limits  of 
sovereignty'.  Similarly  in  the  seventeenth  century, 
against  the  clericalism  of  Rome  or  of  Geneva  the 
omni-competence  of  the  State  was  asserted. /^gainst 
the  claim  of  Pope  or  Presbyter  to  obedience  by 
Divine  Right  the  Divine  Right  of  Kings  must  be  *^ 
elaborated.  Against  the  claims  to  dissolve  the  bonds 
of  sentiment  or  conscience  between  governors  and 
governed,  conscience  must  be  claimed  for  the  secular 
government  by  the  theory  of  non-resistance,  and  diffi- 
cult cases  solved  by  the  doctrine  of  Passive  Obedience,  j 

'  Dicey,  Lmv  of  the  Constitution,  72 — 78. 


204  PASSIVE  OBEDIENCE  AND  THE 


It  may  seem  strange  that  men  such  as  Laud, 
with  high  views  of  the  position  of  the  Church  and 
the  power  of  the  priesthood,  should  have  asserted 
so  strongly  a  theory,  which,  as  frequently  expounded, 
involves  the  assertion  of  the  authority  of  the  Crown 
over  the  forms  of  Church  government  and  doctrine. 
But  it  must  be  borne  in  mind  that  Laud,  like  Parker 
and  Whitgift,  was  well  aware  that  the  political  supre- 
macy of  the  State  over  the  Church  was  too  well- 
established  a  principle  to  disappear,  nor  did  he  grasp 
the  doctrine  of  the  two  societies.  It  could  only 
change  hands.  He  knew  thai  if  this  supremacy  were 
not  retained  by  Charles,  it  would  pass  over  to  the  Par- 
liament, and  would  be  wrested  into  the  protection  and 
establishment  of  Puritanisiuj  Laud  was  not  ignorant 
that  the  Church  of  England  "  as  by  law  established  " 
had  its  strongest  supporter  in  Charles.  Although  the 
Roman  controversy  was  not  over,  he  must  have  felt 
that  the  danger  to  England  from  that  side  was  daily 
diminishing.  /  The  supremacy  of  the  Crown  might  be 
extolled  to  any  extent  by  a  Caroline  divine.  For  it 
was  known  that,  as  a  matter  of  fact,  so  long  as  it 
remained  in  the  hands  of  the  King,  it  would  be 
used  to  promote  the  welfare  of  the  Churcjj..^  It  was 
not  needful  to  demand  passionately  that  the  King 
should  maintain  the  true  religion  and  prohibit  false 
teaching.  Nor  was  it  necessary  to  fetter  the  royal 
prerogative  in  order  that  the  Church  might  be  free. 
Knox  had  been  driven  to  both  these  courses.  But  in 
England  the  King  might  be  trusted  to  maintain  the 
status  quo  and  to  guard  against  the  aggressions  of 
Puritanism.    In  England  the  royal  authority  was 


CHURCH  OF  ENGLAND 


205 


favourable,  in  Scotland  it  was  hostile  to  the  dominant 

religious  system.    If  James  VI.  ever  felt  free  to 

throw  off  the  yoke  of  the  Kirk  there  could  be  little 

doubt  that  he  would  do  so ;  indeed  he  made  various 

attempts  to  strengthen  his  authority  over  it'.  A 

shrewd  suspicion  of  this  disposition  must  tend  to 

drive  the  leaders  of  Presbyterianism  into  hostility  to 

any  doctrine  of  the  nature  of  the  royal  supremacy, 

even  irrespective  of  their  previous  theory.  James 

would  be  dangerous  to  the  Kirk.    His  freedom  to 

touch  it  must  therefore  be  denied.    On  the  other 

hand  the  greater  the  freedom  of  Charles  I.  the 

better  would  it  be  for  the  Church  of  England,  or  at 

least  for  the  particular  view  of  its  character  and 

ritual  taken  by  Laud.    From   the  time  of  the 

Elizabethan  settlement  onward  the  royal  supremacy 

was  the  bulwark  of  the  Church  of  England  against 

Puritan  innovations. 

Thus  the  taunt  is  not  justified,  that  the  theory  Unprin- 

of  the  Divine  Right  of  Kings  was  merely  the  fiction  H^l^ty 

of  a  time-serving  hierarchy,  intent  upon  gaining  cannot 

court  favour,  whatever  might  happen  to  the  Church/attmuted 

For  the  belief  in  this  theory  was  the  most  trust- 

,  .      p      1  .  Anglican 

worthy  security  for  the  permanence  and  stability  oi  clergy. 

that  order  of  things  which  the  clergy  had  learnt  to 

love.    They  were  not  serving  their  King  instead  of 

their  God ;  the  best  defence  of  the  Church  was  the 

support  of  the  Crown.    Nor  is  it  a  cause  for  blame 

to  the  clergy  that  the  theory  of  Divine  Right  found 

in  them  its  strongest  and  most  numerous  body  of 

supporters.     The  theory  is,  as  has  been  shewn, 

'  Gardiner's  History  of  England,  passim. 


206 


PASSIVE  OBEDIENCE  AND  THE 


essentially  anti-clerical.  Yet  for  this  reason  it  was 
necessary,  if  it  were  to  be  effective,  that  the  doctrine 
should  be  in  the  main  formulated  by  a  body  of 
clergy.  The  claims  of  a  system  of  clericalism,  such 
as  the  Papal  or  Presbyterian,  might  indeed  be 
denied  by  laymen ;  but  they  could  not  be  effectively 
refuted  save  by  clergy.  The  element  of  truth  in 
the  Papal  claim  made  it  essential  that  it  should  be 
met  by  clergy  rather  than  laymen.  For  Bellarmine 
and  Knox  were  right  in  asserting  that  only  the 
spiritual  power  can  give  the  authoritative  decision 
as  to  whether  men  were  bound  in  conscience  to 
obey  their  rulers.  The  question  as  one  of  conscience 
must  be  decided  by  the  spiritual  authority.  It  was 
not  in  claiming  for  a  religious  body  the  decision  of 
the  moral  and  religious  question,  whether  or  no 
obedience  is  due  to  the  State  on  religious  and  moral 
grounds,  that  the  Jesuits  erred.  Where  they  were 
mistaken  was  in  asserting  that  the  secular  power  as 
such  had  no  moral  claim  to  obedience  apart  from 
the  theological  accuracy  of  the  opinions  which  it 
enforced.  The  assertion  that  obedience  is  a  religious 
duty  in  all  states,  irrespective  of  the  opinions  of  the 
ruler,  was  not  merely  the  sole  method  of  rendering 
politics  free  from  ecclesiasticism ;  it  could  only  be 
made  effectively  by  a  body  of  men  representing  the 
spiritual  authority.  None  but  the  clergy  could 
^  meet  the  Pope  on  his  own  ground.  It  was  vain  to 
denounce  ecclesiasticism  in  politics,  unless  the  leaders 
of  some  religious  body  asserted  that  the  possession 
of  religious  truth  was  not  the  one  road  to  political 
wisdom,  and  that  a  national  Church  might  be  truly 


CHURCH  OF  ENGLAND 


207 


of  God's  appointment  without  making  the  civil 
magistrate  its  vassal.  That  the  doctrine  in  this 
country  was  in  an  especial  degi'ee  the  product  of  the 
Church  of  England  and  her  divines  is  undoubted. 
Yet  it  was  equally  the  product  of  the  Gallican 
Church.  Indeed  the  Gallican  liberties  are  one  of 
the  chief  sources  whence  the  doctrine  could  be 
drawn \  For  the  ideal  of  the  Divine  Right  of  Kings 
in  matters  of  theology  is  an  assertion  within  limits 
of  the  rights  of  a  national  Church.  The  Pope  had 
claimed  a  superiority  which  rendered  nugatory  the 
name  of  national  Church. 

The  Presbyterian  system,  while  asserting  national 
independence  of  Papal  sovereignty,  would  have  yet 
set  up  within  the  nation  an  organization  which 
would  have  dwarfed  the  State  and  hindered  the 
growth  of  the  nation's  life.  A  Geneva  on  a  great 
scale  would  not  have  been  a  national  Church. 
Before  the  Church  should  have  established  its 
position,  the  nation  would  have  disappeared.  Even 
Independency,  which  seems  to  leave  the  whole 
matter  free,  implies  a  denial  of  the  right  of  the 
nation  as  a  whole  to  an  ecclesiastical  organization. 
Had  it  ever  become  universal,  there  could  not  have 
been  a  single  religious  communion  claiming  to 
represent  the  nation  on  its  spiritual  side. 

If  by  a  national  Church  be  meant  a  religious  The  theory 
body   which,  representing   the  whole  nation  yet  ^anaUonal 

Church. 

'  See  supra  chap.  vi.  The  connection  between  the  conceptions 
of  Divine  Right  and  a  national  Church  appears  strongly  in  the 
collection  of  treatises  made  by  Pithou,  Les  Libertez  de  VEglise 
Gallican  e. 


208  PASSIVE  OBEDIENCE  AND  THE 


leaves  its  political  life  free  to  develope,  unaffected 
by  the  upas-tree  of  clericalism,  there  can  be  no 
doubt  that  the  theory  of  Divine  Right  was  in- 
separably connected  with  the  ideal  of  a  national 
Church  in  the  seventeenth  century,  and  that  it  was 
necessary  to  secure  its  realization  in  the  face  of 
Papal  or  Presbyterian  or  Separatist  pretensions. 

Signifi-  For  the  theory  of  Divine  Right  is  a  religious 

cance  of  .  .  . 

Passive  as  well  as  a  political  dogma.  The  stress  laid  upon 
Obedience,  ^j^^  ^^^^       Passive  Obedience  is  a  proof  of  this. 

Non-resistance,  as  an  element  in  a  utilitarian 
system  of  politics,  would  probably  be  taught 
without  qualification.  Little  would  be  said  of 
Passive  Obedience,  even  though  it  should  not  be 
forbidden.  This  is  actually  the  case  with  the 
Leviathan.  But,  where  absolutist  theory  is  es- 
sentially religious,  it  is  inevitable  that  men  should 
consider  the  cases  where  disobedience  to  law  is 
a  religious  duty.  For,  when  civil  obedience  is 
inculcated  as  a  part  of  God's  Law,  the  case  cannot 
be  ignored  of  the  government's  endeavouring  to 
persecute  the  true  religion.  Under  certain  condi- 
tions  martyrdom  is  a  recognized  duty,  and  this  implies 
the  duty  of  disobedience  to  the  commands  of  the 
Sovereign.  Unless  the  qualification  be  taken  into 
account,  no  Christian  could  proclaim  the  doctrine  of 
indefeasible  hereditary  right.  Men  did  not  desire 
the  exclusion  of  James  because  they  expected  that 
he  would  be  a  tyrant,  but  because  they  knew  that 
he  was  a  Papist.  Those  who  opposed  his  exclusion 
were  forced  to  lay  stress  upon  the  duty  of  Anglicans 
in  the  possible  case  of  his  persecuting  their  religion. 


CHURCH  OF  ENGLAND 


209 


The  doctrine  of  Passive  Obedience  hampered,  in 
more  ways  than  one',  the  supporters  of  the  Divine 
Right  of  Kings.  They  were  taunted  with  shewing 
their  want  of  faith  in  their  sovereign,  since  they 
were  ever  considering  the  chance  of  his  being  a 
heretic  and  a  persecutor.  It  was  declared  that  no 
wise  upholder  of  the  doctrine  of  resistance  would 
dream  of  inculcating  the  duty  of  disobedience  as 
a  general  rule,  whereas  to  judge  by  their  language 
the  supporters  of  Divine  Right  regarded  the  case 
for  passive  obedience  as  one  of  constant  recurrence. 
Besides  passive  obedience  was  little  better  than 
active  resistance^;  and  its  supporters  might  be 
branded  as  advocates  of  rebellion.  Hobbes  wrote 
that  since  the  Incarnation  is  the  central  doctrine 

'  Sanderson,  one  of  the  acutest  minds  who  wrote  on  behalf 
of  Divine  Right,  is  fully  aware  of  the  danger,  and  endeavours  to 
minimize  to  the  utmost  the  duty  of  Passive  Obedience.  In  all 
doubtful  cases  he  declares  the  responsibility  to  rest  with  the 
magistrate,  and  active  obedience  to  be  due.  He  allows  that,  when 
the  conscience  is  clear  as  to  the  iniquity  of  the  magistrate's 
command,  obedience  must  be  withheld,  but  even  here  disobedience 
is  sin;  and  the  case  is  one  of  the  choice  between  two  evils.  "In 
such  a  case  certainly  he  may  not  obey  the  magistrate ;  yet  let  him 
know  thus  much  withal,  that  he  sinneth  too  in  disobeying  the  magis- 
trate ;  from  which  sin  the  following  of  the  judgment  of  his  own 
conscience  cannot  acquit  him.  And  this  is  that  fearful  perplexity, 
whereof  I  spake,  wherein  many  a  man  casteth  himself  by  his  own 
error  and  obstinacy,  that  he  can  neither  go  with  his  conscience 
nor  against  it,  but  he  shall  sin"  (Judgment  in  One  View,  156). 

^  H.ohhes'  Answer  to  Bramhall, 1^7 .  "Passive  Obedience  signifies 
nothing  except  it  may  be  called  passive  obedience,  when  a  man 
refraineth  himself  from  doing  what  the  law  hath  forbidden.  For 
in  his  lordship's  sense  the  thief  that  is  hanged  for  stealing  hath 
fulfilled  the  law,  which,  I  think,  is  absurd."  See  also  De  Corpore 
Politico,  chap.  vi. 

F.  14 


210  PASSIVE  OBEDIENCE  AND  THE 


of  the  Christian  faith,  the  prohibition  of  that  belief 
and  that  alone  can  justify  men  in  refusing  to  obey 
the  laws'.  No  case  of  the  persecution  of  one 
Christian  body  by  another  can  exempt  men  from 
the  normal  duty  of  active  obedience.  Further, 
it  might  be  said,  that  even  in  the  last  resort  the 
case  was  not  clear,  for  the  Apostles,  who  declared 
that  God  must  be  obeyed  rather  than  man,  were 
eye-witnesses  of  the  Resurrection ;  their  case  was 
therefore  peculiar^  Moreover,  Elisha  had  bidden 
Naaman  go  in  peace,  when  he  talked  of  bowing 
himself  in  the  House  of  Rimmon.  Taunts  of  this 
sort  could  easily  be  levelled  at  the  believers  in 
Passive  Obedience.  That  there  was,  indeed,  some 
justification  for  these  taunts,  is  shewn  by  the  so- 
phistical quibble  with  which  the  doctrine  is  wrested 
to  cover  the  case  of  the  Revolution  and  of  the 
acquiescence  of  the  clergy  in  William's  reign.  The 
doctrine  of  passive  obedience  could  not  have  loomed 
so  large  save  to  men  for  whom  politics  was  a  branch 
of  theology.  The  cause  of  its  playing  so  great  a 
part  in  the  doctrine  of  Divine  Right  is  that  the 
latter  is  bound  up  with  the  defence  of  the  Church 
of  England  against  its  foes.  At  this  time,  indeed,  all 
theories  of  politics  either  have  a  religious  basis  or 
are  framed  with  the  practical  object  of  defending 
the  true  faith.  Politics  and  theology  are  as  yet 
intimately  connected.  And,  though  in  the  writ- 
ings of  Locke  and  Sidney  we  see  politics  seeking 
to  free  themselves  fi^om  their  theological  vesture,  it 

'  Leviathan,  ii.  43;  the  passage  is  quoted  in  Appendix  III. 
'  Behemoth,  86. 


CHURCH  OF  ENGLAND 


211 


is  not  yet  cast  away.  When  the  theory  of  Divine 
Right  is  thus  seen  to  be  connected  with  the  existence 
of  the  Church  of  England  and  with  its  position  as  a 
Church,  at  once  anti-papal  and  anti-presbyterian,  we 
shall  surely  see  some  justification  of  the  action  of 
the  clergy  in  1688.  The  theory  of  the  Divine  Right  James  II. 
of  Kings  is  framed  for  the  defence  of  the  nation  |"e'|;f° 
against  Roman  claims.     It  is  a  weapon  forged  thennj  to 

.  1       T->  111-  1  If     thwart  the 

agamst  the  rapacy,  although  it  may  be  used  tor  purpose 
other  puiTjoses.    James  saw  that  the  weapon  was '".'^"^j 

^     ^  it  existed. 

two-edged,  and  attempted  to  use  it  against  the  His 
Church,  in  whose  defence  it  was  formed,  and  in-^j^"'^ 
favour  of  the  very  power  it  was  fashioned  to  attack,  natural. 
What  wonder  that  the  sword  broke  in  his  hands ! 
Whether  or  no  the  interpretation  of  the  theory 
set  upon  it  by  James  was  logically  justified,  it  ran 
directly  counter  to  the  intention  of  all  who  had 
taken  part  in  the  making  of  it.  The  Anglican  clergy 
were  moved  in  their  action  by  the  clear  conviction 
that  no  one  could  have  intended  that  the  great  anti- 
papal  weapon  should  be  used  in  favour  of  the  Pope. 
They  must  have  felt  that  James  was  following  in 
the  footsteps  of  Queen  Mary,  and  was  attempting  to 
use  the  royal  supremacy  in  order  to  render  it  a 
nullity  for  evermore.  They  refused  him  their 
assistance  in  this  attempt.  Who  can  blame  them  ? 
In  neither  politics  nor  theology  are  men  of  any  age 
aware  of  the  whole  extent  of  the  ground  which 
their  theories  may  logically  be  held  to  cover.  Nor 
will  they  ever  hesitate  about  refusing  to  carry 
a  belief  to  its  theoretical  conclusion,  when  the  conclu- 
sion conflicts  with  the  purpose  for  which  the  doctrine 

14—2 


212  PASSIVE  OBEDIENCE  AND  THE 


was  first  framed.  There  are  many  nowadays  who 
profess  the  doctrine  vox  populi  vox  dei.  But  it 
can  hardly  be  maintained,  that  they  are  prompt  to 
acknowledge  an  unfavourable  verdict  of  the  con- 
stituencies as  of  divine  prompting.  If  the  worship- 
pers of  democracy  are  at  times  betrayed  into  reading 
diaholi  for  dei,  or  into  employing  anti-democratic 
institutions  in  order  to  maintain  their  position,  are 
we  to  find  great  fault  with  the  supporters  of  non- 
resistance  in  the  seventeenth  century,  who  found 
that  for  once  they  had  been  mistaken,  and  that 
on  occasion  it  might  be  well  to  exhibit  the  virtue  of 
non-resistance,  not  to  a  Romanising  king,  but  to 
a  Protestant  invader  ?  The  theory  of  Divine  Right 
had  a  great  work  to  do  in  assisting  Englishmen  to  free 
themselves  fi:om  the  Papal  yoke.  The  proof  that  the 
work  was  done  was  not  reached  until,  in  their  fear  of 
Rome,  men  were  ready  to  cast  aside  the  very  weapon 
which  had  hitherto  aided  them  in  the  struggle. 
Work  1^  So  far  remark  has  been  made  of  the  service 
"doctrine  pei'formed  by  the  theory  of  Divine  Right,  in  as- 
serting the  profound  truth  that  political  institutions 
per  se  are  not  displeasing  to  God  as  the  author  of 
nature ;  that  they  otight  to  be  something  more 
than  the  instruments  of  ecclesiastical  authority ; 
that  the  statesman  is  not  bound  to  take  his  policy 
fi'om  the  priest ;  that  the  State  as  such  is  an 
organism  with  a  life  of  its  own,  and  is  subject  to 
laws  of  developement  distinct  fi'om  those  of  the 
Church ;  that  the  rulers  of  the  Church  will  not 
necessarily  be  possessed  of  political  wisdom  above 
the   common,  and   may  not  without   danger  be 


CHURCH  OF  ENGLAND 


213 


trusted  with  the  tremendous  power  of  deciding  on 
questions  of  national  policy  with  reference  to  the 
aggrandizement  of  that  organization  (which  itself 
has  an  earthly  side),  to  whose  service  they  are 
devoted;  or  in  modern  phrase  that  the  "clergy 
should  not  meddle  with  politics."  It  is  thus  clear, 
that  to  the  derided  Anglican  clergy  of  the  seven- 
teenth century  are  due  many  of  the  most  cherished 
principles  of  modem  life.  They  may  not  justly 
be  charged  with  pursuing  a  time-serving  and  servile 
policy.  Their  aims  were  not  dictated  by  the  in- 
terests of  a  class  or  section,  but  were  patriotic  and 
pre-eminently  characteristic  of  the  defenders  of  a 
national  Church.  They  cannot  truly  be  charged 
with  deserting  their  principles  the  moment  that 
they  became  inconvenient,  for  their  conduct  at  the 
time  of  the  Revolution,  if  inconsistent  with  the 
letter  of  their  doctrine,  only  proves  how  deeply 
imbued  they  were  with  its  spirit,  and  exhibits  their 
thorough  loyalty  to  the  essential  principle  which 
their  theory  was  framed  to  express^'  All  this  is  true, 
and  has  been  too  often  left  out  of  account  in  the  abuse 
that  has  been  levelled  at  the  believers  in  Divine  Right. 

Yet  it  must  not  be  forgotten  that  much  was  due  The 
to  that  very  ecclesiastical  theory  of  politics  agamst  theory  had 
which   men   strove   in   the   seventeenth  century.  *  'value. 
That  doctrine  also  had  a  practical  work  to  perform ; 
despite  much  in  it  that  was  false  and  exaggerated 
and  seems  to  modem  notions  preposterous  beyond 
measure,  it  has  brought  about  the  recognition  of 
one  of  the  most  important  principles  that  can 
guide  the  statesman.    For  the  claims  of  Pope  or 


214  PASSIVE  OBEDIENCE  AND  THE 


Presbyter  to  control  the  secular  power  in  the  in- 
terests of  the  spiritual  enshrined  in  the  only  form 
possible  to  those  times  the  principle  of  the  rights  of 
It  is  an     conscience,  j  In  ages  when  the  enforcement  of  con- 
of^assert^  formity  by  the  strong  hand  is  a  recognized  principle, 
ing  the      when  all  nations  profess  the  same  form  of  religious 

Tights  of  .  ,  ,  .... 

conscience,  belief,  or  when  the  maxim  cujus  regio  ejus  religio 
has  become  accepted,  the  only  possible  method  of 
asserting  the  rights  of  conscience  and  the  claims  of 
truth  i^  for  the  Church  to  claim  superiority  over  the 
State,  j  It  is  inevitable  at  such  times  that  the 
pereniiial  problem  of  Church  and  State  shall  take 
the  form  of  a  struggle  for  supremacy;  for  neither 
can  admit  the  entire  authority  of  the  other  without 
the  gravest  danger  on  the  one  hand  to  truth,  on  the 
other  to  the  free  developement  of  national  life.  If 
the  State  be  admitted  to  be  omni-competent,  while 
the  persecution  of  error  is  preached  as  a  duty,  an 
Emperor  or  King  with  a  theological  turn  of  mind 
may  commit  the  Church  to  a  heresy  and  endanger 
God's  truth  for  all  time\  For  ex  hypothesi  it 
is  recognized  that  the  State  is  supreme  in  all 
departments  of  life ;  that  it  is  the  duty  of  the  State 
to  enforce  conformity ;  and  that  resistance  is  un- 
justifiable. The  State  may  therefore  compel  the 
propagation  of  heresy,  and  stamp  out  completely  the 
true  faith,  for  the  notion  is  unfounded,  that  persecu- 
tion always  fails  ^.    If  the  rights  of  conscience  and 

1  On  the  element  of  justice  in  the  claims  of  the  Church  see  the 
remarks  of  Dean  Church  in  the  letter  to  Cardinal  (then  Archdeacon) 
Manning  of  July  1844  (Purcell,  Life  of  Cardinal  Manning,  i.  696). 

2  Mill,  On  Liberty,  16. 


CHURCH  OF  ENGLAND 


215 


the  claims  of  truth  are  to  be  respected  at  all,  the 
Church  must  make  herself  the  guardian  of  them 
and  claim  supremacy  over  the  State.  So  long,  of 
course,  as  persecution  is  a  recognized  principle,  truth 
cannot  be  secure.  But  it  is  at  least  a  step  in  the 
right  direction  that  the  power,  which  has  physical 
force  on  its  side,  shall  submit  to  take  its  views  of 
truth  and  error  from  the  power,  whose  force  is  moral 
and  spiritual  only.  It  is  better  that  the  Church 
should  dii-ect  the  State,  as  to  what  forms  of  faith  to 
enforce  or  to  persecute,  than  that  the  State  should 
prescribe  religion  propria  motu.  Even  this  imperO 
feet  condition  of  things  is  a  tribute  to  the  rights  of' 
conscience,  to  the  claims  of  truth,  and  to  the  existence 
of  human  interests  other  than^  those  which  ^^^j 
merely  material  and  earthly.  /Toleration  involves 
the  principle,  that  religion  is  a  department  of  life  ^ 
which  the  State  has  no  moral  right  to  control,  that 
opinion  may  not  be  coerced.  Persecution  by  the 
State  at  the  bidding  of  the  Church  contains  the 
germ  of  this  principle ;  for  it  arises  from  the  notion 
that  the  State  as  such  cannot  meddle  with  opinion, 
but  must  take  its  views  from  those  who  know.  It  forms 
the  necessary  transition  between  the  State-religion 
of  the  Roman  Empire  and  the  modern  ideal  of  freedom 
of  opinion^  In  the  first  stage,  the  State  prescribes 
a  religion  of  its  own  and  compels  all  men  to  worship 
the  Emperor.  In  the  second,  the  State  recognizes 
that  it  is  incompetent  to  decide  upon  questions  of 
religious  belief,  and  must  go  to  the  spiritual  au- 
thority to  find  truth ;  but  it  still  regards  the 
enforcement  of  truth  as  a  duty,  and  persecution  as 


216 


PASSIVE  OBEDIENCE  AND  THE 


its  proper  function.  The  third  stage  is  that  of 
complete  toleration  of  all  forms  of  belief,  when  the 
State  has  given  up  its  claim  to  meddle  with  opinion, 
and  regards  religious  questions  as  beyond  its  com- 
petence. Now  the  third  stage  was  not  reached  at 
the  period  which  is  here  being  discussed.  It  will 
therefore  be  readily  seen  that  in  order  to  secure  the 
principle  which  is  characteristic  of  the  second  stage, 
and  to  prevent  a  relapse  into  the  first,  the  Church 
must  ever  be  proclaiming  its  supremacy  in  matters  of 
faith  and  denying  the  right  of  the  State  to  meddle 
therein  save  at  its  bidding.  This  must  inevitably 
lead  to  some  such  claim  of  political  authority  as 
was  put  forward  under  the  Papal  or  Presbyterian 
system.  If  the  State  admits  the  right  of  the  Church 
to  dictate  to  it  the  true  faith  to  be  enforced  and  to 
prescribe  forms  of  ecclesiastical  organization  and 
discipline,  the  Church  will  be  found  continually 
encroaching  upon  the  State ;  many  matters,  which 
are  of  civil  import,  will  be  treated  as  constructively 
ecclesiastical ;  and,  in  the  last  resort,  all  fi'eedom  will 
be  denied  to  the  State,  and  its  unspiritual  character 
will  be  made  the  basis  of  a  claim  for  its  enslavement. 
The  State  must  then  assert  its  independence ;  and 
the  form  of  the  assertion  is  the  subject  of  this  essay. 
The  Nor  is  there  any  means,  whereby  the  conflict 

TvUably"'  can  be  brought  to  a  close,  until  the  principle  of 
lasts,  until  toleration  be  generally  accepted.    Only  when  the 

toleration  •        ,    /i         i  •       ^  i  ,  ■  • 

becomes  a  State  has  resigned  the  claim  to  make  religion 

recognized  go-extensive  with  its  authority,  can  the  Church  with 
principle.  •'  _ 

safety  withdraw  from  its  pretensions  to  make  politics 

subservient  to  ecclesiasticism.    When  that  be  the 


CHURCH  OF  ENGLAND 


217 


case,  the  State,  by  giving  up  the  claim  to  enforce 
truth  at  the  point  of  the  bayonet,  will  have  freed 
the  Church   from  the  risk  of  destruction.  The 
claims  of  the  State  to  omnipotence  may  hence- 
forward be  admitted.    The  Church  will  no  longer  be 
in  danger  with  every  chance  current  of  thought,  that 
may  sway  the  sovereign  one  or  number.   There  is  no 
longer  any  need  for  the  Church  to  proclaim  its  supre- 
macy over  the  State,  for  its  activity  is  recognized  as 
free  from  State  interference.  The  State  is  sovereign. 
It  may  legally  do  what  it  pleases.    No  co-equal 
jurisdiction  exists.     No  clerical  organization  may 
dictate  to  it.    That  is  the  principle  underlying  the 
sophistical  reasoning  and  obsolete  philosophy  of  the 
supporters  of  the  Divine  Right  of  Kings.  Con- 
science must  be  respected.    Beliefs  are  free.  Men's 
forms  of  ecclesiastical  organization  must  be  of  their 
own  choosing.    The  State  must  not  force  their  faith 
or  practice.    Religious  toleration  is  to  be  a  practical 
limit  upon  the  exercise  of  the  sovereign  power. 
This  is  the  principle,  which  out  of  numberless 
impossible  claims  and  anarchical  opinions  has  been 
won  for  modem  citizens  by  those  who  assert  the 
Divine  Right  of  Pope  or  Presbyter.    Neither  side 
saw  clearly  or  completely  what  was  the  essence  of 
its  claim.     Neither  side  realized  that  toleration 
alone  could  set  the  conflicting  claims  at  rest,  and 
permit  of  both  Church  and  State  developing  without 
injuring  one  another.  Both  sides  argue  with  passion, 
with  sophistry,  with  an  uncritical  assumption  of 
God's  being  on  their  side,  which  must  seem  to  us 
Pharisaical.y  Yet  each  side  was  right  in  its  main 


218 


PASSIVE  OBEDIENCE  ETC. 


contention.  The  State  has  a  right  to  exist  apart 
from  the  favour  of  the  clergy;  and  politics  should 
not  be  governed  by  ecclesiastical  considerations. 
On  the  other  hand  there  are  departments  of  thought 
and  action  with  which  the  State  may  not  interfere 
without  the  gravest  injury  to  the  highest  interests 
of  humanity.  Both  sides  were  fighting  for  principles 
which  have  long  been  admitted  to  be  rooted  in  right 
reason  and  utility.  To  throw  ridicule  upon  the 
antiquated  forms  in  which  these  principles  found 
expression  and  did  their  work,  to  blame  the  royalist 
for  servility  or  the  Papalist  for  bigotry  is  to  blame 
men  for  defending  a  just  cause  with  the  only 
weapons  that  were  available.  That  there  was  too 
much  of  passion  and  prejudice  on  either  side  may 
be  admitted.  Even  modern  controversies  are 
not  quite  without  them.  But  they  are  frequently 
wanting  in  those  solid  results,  which  give  such 
cause  for  gratitude  to  the  controversialists  of  the 
middle  ages  and  the  Reformation.  The  more  closely 
the  subject  is  studied,  the  greater  will  be  the  debt  of 
gratitude  acknowledged  alike  to  those,  who  by  sup- 
porting the  Divine  Right  of  Kings  have  ministered 
to  the  stability  and  independence  of  the  English 
State,  and  to  their  opponents,  to  whose  labours  we 
owe  it  that  liberty  of  thought  has  become  a  recog- 
nized principle  of  modern  life. 


CHAPTER  IX 


NON-RESISTANCE  AND  THE  THEORY  OF 
SOVEREIGNTY 

It  is  as  a  phase  in  the  conflict  of  Church  and  Political 
State  that  the  theory  of  the  Divine  Right  of  Kings  IhTtheory. 
possessed  its  greatest  significance  and  produced  its 
most  memorable  results.  Yet  it  has  a  place  also  in 
the  history  of  the  developement  of  ' the  theory  of 
government,  and  must  be  considered  in  relation  to 
those  political  problems  which  occupied  men's 
minds  in  the  seventeenth  century.  It  is  true,  that 
with  the  possible  exception  of  Hobbes,  all  the 
political  theorists  up  to  the  end  of  the  seventeenth 
century  either  have  religion  for  the  basis  of  their 
system,  or  regard  the  defence  or  supremacy  of 
some  one  form  of  faith  as  their  main  object.  Hardly 
any  political  idea  of  the  time  but  had  its  origin 
in  theological  controversy.  To  Roman  writers  in 
the  main  are  due  the  theories  of  the  State  of  nature 
and  of  the  original  compact".  Popular  rights  and  ec- 
clesiastical supremacy  are  bound  up  with  one  another. 

1  See  especially  Suarez,  De  Legibus,  iii.  4;  Mariana,  De  Rege, 
I.  1,  2,  8.  In  the  last-mentioned  chapter  the  question  discussed 
is  "Keipublicae  an  Regis  major  potestas  sit?"  The  course 
of  the  argument  is  singularly  instructive,  and  much  of  it  might 
have  been  written  by  Locke.    It  is  notable  that,  although  deciding 


220 


NON-RESISTANCE  AND  THE 


Yet  since  all  these  theological  controversies  have 
a  political  aspect,  it  is  possible  to  isolate  this  aspect 
for  the  purposes  of  enquiry  and  to  investigate  the 
purely  political  side  of  the  theory  of  Divine  Right. 
There  will  be  the  less  danger  in  this  course,  since 
the  markedly  theological  character  of  all  seventeenth 
century  politics  has  already  been  sufficiently  dwelt 
upon.  Further,  in  the  deluge  of  political  literature 
that  poured  forth  in  the  seventeenth  century,  it  can 
hardly  be  but  that  views  of  every  sort  shall  be 
found  here  and  there  in  reluctant  combination. 
An  attempt  to  disentangle  the  main  threads  of 
controversy  can  lay  no  claim  to  comprehensive 
accuracy.  Lines  of  thought  apparently  inconsistent 
will  at  times  be  united  through  individual  idio- 
syncrasy. Methods  of  argument  will  change  sides. 
Sentiments  and  opinions  will  be  subject  to  kaleido- 
This  scopic  permutations.  A  sketch  like  the  present 
chapter  more  than  describe  general  tendencies  of 

can  only  o 

describe    difference  or  resemblance  between  opposing  schools. 

tendencies.  S^^^  ^  rough  estimate  of  what  was  the 

characteristic  drift  of  thought  on  either  side.  But 
it  cannot  lay  claim  to  finality.  Nor  must  it  be 
forgotten  that  individual  writers  may  well  be  found 
whose  personal  equation  obscures  the  main  lines 

in  Chapter  2  that  monarchy  is  the  best  form  of  government, 
Mariana  would  yet  surround  his  king  with  all  sorts  of  limitations, 
so  that  he  really  leaves  the  sovereignty  with  the  people,  and  thus 
falls  into  the  error  of  supporting  a  "mixed  monarchy."  "Pos- 
tremo,  quod  caput  est,  Principis  malo  coercendi  potestatem  in 
republica  residere."  It  is  needless  to  say  that,  in  Mariana's  view, 
one  of  the  main  limits  on  royal  authority  is  set  by  the  freedom 
of  the  Church.    Cf.  From  Oerson  to  Grotius. 


THEORY  Ol''  SOVEREIGNTY 


221 


of  controversy,  and  causes  thein  to  overleap  the 
barriers  of  thought  which  separate  opposing  parties. 
Still  there  are  certain  well-marked  differences  in 
conception  and  standpoint  between  the  combatants 
on  either  side ;  each  party  appears  to  represent 
certain  distinctive  tendencies.  It  seems  reasonable 
to  attempt  the  exposition  of  these  characteristics, 
after  thus  premising  that  isolated  cases  may  be 
found  in  which  they  are  not  exhibited.  It  will  then 
be  necessary  to  consider,  whether  or  no  the  theory  of 
the  Divine  Right  of  Kings  was  something  more 
than  the  expression  of  an  absurdly  romantic  senti- 
ment of  loyalty ;  how  much  it  has  in  common  with 
other  political  theories  of  the  time ;  whether,  when 
it  differs  from  them,  it  differs  from  them  for  the 
worse ;  and  whether  it  contained  within  it  notions 
of  the  State,  its  powers  and  functions,  which  modem 
thought  has  not  discarded. 


I. 

There  is  no  more  universal  characteristic  of  the  Vniver- 
political  thought  of  the  seventeenth  century  than  I'^^llgi^f, 
the  notion  of  non-resistance  to  authority.     "  To  non-re- 
brmg  the  people  to  obedience "  is  the  object  of 
writers  of  all  schools.    When  resistance  is  preached, 
it   is  resistance   to   some  authority  regarded  as 
subordinate.     Nor  is  the  resistance  permitted  at 
the  pleasure  or  judgment  of  private  individuals. 
It  is  allowed  only  as  a  form  of  obedience,  as  execut- 
ing the  commands  of  some  superior  and  ultimate 


222 


NON-RESISTANCE  AND  THE 


authority,  God,  or  the  Pope  and  the  Law.  It  has 
been  shewn  already  that  the  Papal  theory  is  in 
truth  a  doctrine  of  obedience  to  a  monarch.  Great 
indeed  was  the  indignation  evoked  by  the  airy 
manner  in  which  Bellarmine  or  Mariana  disposed  of 
the  claims  to  obedience  of  the  secular  prince,  and 
fostered  principles  of  popular  sovereignty.  Yet  at 
least  some  Anglican  writers  were  capable  of  seeing 
that  all  these  notions  are  developed  as  part  of  a 
theory  of  obedience,  and  not  of  liberty,  and  that  the 
text,  "  They  that  resist  shall  receive  to  themselves 
damnation,"  so  far  from  being  discarded  or  explained 
away,  is  interpreted  as  proving  the  political  supre- 
macy of  the  Pope.  As  Bishop  Jackson  puts  it, 
"  The  principle  wherein  the  Romish  Church,  the 
Jesuits,  and  we  agree  is  this ;  that  none  may  resist 
the  higher  powers ;  that  obedience,  at  least  passive 
or  submissive  from  the  outward  man  of  our  bodies, 
lives,  and  estates  is  due  to  the  higher  powers ;  the 
question  is... which  be  the  highest  powers  on  earths" 
So  with  the  Presbyterian  view.  The  main  object 
of  the  discipline  is  obedience,  in  Cartwright's 
view^.  The  strong  expressions  about  duty  to  the 
civil  magistrates  which  seem  inconsistent,  when  read 
by  the  side  of  claims  to  depose  them,  are  explained 
by  the  view,  held  in  common  with  Papalists  and 
Wycliffe,  that  resistance  for  mere  oppression's  sake 

1  Jackson,  Treatise  of  Christian  Obedience  {Works,  iii.  971.) 

^  Cf.  the  following,  "Under  the  name  of  the  Saints  are  con- 
tained all  the  rest  of  the  Church,  which  do  not  exercise  any  public 
oflSce  or  function  therein,  whose  duty  as  in  all  others  sometimes 
is  only  this,  to  suffer  themselves  to  be  ruled  and  governed  by  those 
whom  God  hath  set  over  them."    Declaration  of  Discipline,  185. 


THEORY  OF  SOVEREIGNTY 


223 


is  not  justifiable,  and  that  no  private  person  may 
resist  the  Sovereign.  Only  the  Kirk,  as  inspired  by 
God,  may  dii-ect  the  removal  of  an  "idolater,"  in 
order  to  secure  "  freedom,"  i.e.  supremacy  for  itself 
Neither  Papalist  nor  Presbyterian  (except  George 
Buchanan)  contemplates  the  resistance  of  indi- 
viduals' ;  nor  does  either  make  any  approach  to  the 
modern  notion,  that  obedience  may  be  settled  by 
utilitarian  considerations. 

Even  with  those  who  go  further  than  this  and  Modem 

,  1,1  utilitarian 

look  at  politics  irom  a  more  purely  secular  stand-  theory  of 

point,  God's  cause  is  almost  invariably  the  sole  obedience 

■  1      •  /-(111         -  ^^^'^ 

occasion  of  lawful  resistance.    Clearly,  the  notion  of  in  seven- 

the  Divine  right  of  insurrection  was  not  one,  for  ^^entury 

which  any  considerable  number  of  persons  were 

contending  in  the  seventeenth  century.  Remark 

has  been  made  of  the  emphasis  laid  in  the  Vindiciae 

contra  Tyrannos  on  the  duty  of  passive  obedience 

incumbent  upon  private  individuals  I    So  long  as 

a  tyrant,  however  oppressive  in  his  acts,  is  supported 

by  the  constituted  authorities  and  estates  of  the  realm, 

obedience  to  him  is  a  duty.    Nor  was  the  notion 

confined  to  France.    In  England  it  found  expression 

in  the  theory  that  resistance  to  the  Crown  is  lawful, 

only  if  it  be  enjoined  by  the  inferior  magistrate. 

It  was  pretended  that  the  Parliament  took  up  arms 

against  the  person  only  of  the  King,  but  in  support 

of  his  authority.    This  shews  how  loth  men  were 

to  believe  that  what  was  legally  wrong  will  ever 

'  Mariana  is  apparently  an  exception  with  his  theory  of  the 
duty  of  tyrannicide.    Be  Rege,  i.  7,  8. 
^  Supra  p.  114. 


224 


NON-RESISTANCE  AND  THE 


be  morally  right.  At  this  time  some  shadowy 
legality  is  always  pretended  for  acts  essentially 
revolutionary.  Prynne's  elaborate  treatise  is  written 
with  the  object  of  proving  that  Parliament  at  the 
beginning  of  the  Civil  War  had  the  law  upon  its 
side.  The  author  has  no  notion  that  tyranny  can 
justify  the  abrogation  for  the  nonce  of  law'.  The 
same  notion  appears  more  strongly  in  1688,  in  the 
fiction  that  James,  having  abdicated  the  throne, 
the  English  legal  and  constitutional  system  is  being- 
developed  with  no  breach  of  continuity.  There  is 
evidence  yet  more  conclusive.  Johnson,  writing  on 
behalf  of  the  Exclusion  Bill,  declares  deliberately 
that  Christians  are  bound  to  submit  to  persecution 
in  the  case  where  the  laws  permit  it.  "  When  the 
laws  of  God  and  our  own  country  interfere  and  it  is 
made  death  by  the  law  of  the  land  to  be  a  good 
Christian,  then  we  are  to  lay  down  our  lives  for 
Christ's  sake.  This  is  the  only  case  where  the 
Gospel  requires  passive  obedience,  namely,  when  the 
laws  are  against  a  man  I"  So  widespread  was 
this  notion,  that  one  writer  at  the  time  of  the 
Revolution  subjects  the  Whig  theory  to  the  following 
reductio  ad  ahsurdum.  According  to  the  Whig  view, 
if  the  King  persecutes  the  true  faith,  he  may  be 
resisted.  Now  on  this  view  if  the  law  took  a  similar 
course  it  might  be  resisted.  But  no  Whig  will 
admit  that  this  latter  case  would  make  resistance 
justifiable.  Therefore  it  is  absurd  to  claim  the 
right  in  the  former  case  where  the  King  is  persecutor 

*  The  Sovereign  Power  of  Parliament  and  Kingdoms. 

*  Julian  the  Apostate  (Johnson's  Works,  33). 


THEORY  OF  SOVEREIGNTY 


225 


against  the  law^  Nor,  again,  is  the  main  force  of 
the  royalist  attack  directed  against  the  contention, 
that  resistance  to  the  law  may  in  certain  circum- 
stances be  justified.  Royalists  are  not  concerned  to 
prove  that  the  law  may  not  be  resisted  on  any 
pretence  without  grievous  sin.  Nobody  doubts 
this.  Their  main  position  is  quite  different.  They 
set  themselves  to  prove,  that  laws  derive  their 
binding  authority  from  the  King  alone,  and  therefore 
that  he  may  not  be  resisted  when  he  breaks  them ; 
for  he,  as  the  source  of  legislation,  is  himself  above 
positive  law,  and  resistance  to  the  '  sovereign '  is 
always  sinfuP.  The  real  controversy  between  Royalists 
and  Whigs  concerns  the  existence  of  a  sovereign  one 
or  number  not  subject  to  law'.  The  vexed  question 
of  Julian  the  Apostate  was  a  case  in  point.  The  Whig 

^  Christianity  a  Doctrine  of  the  Cross,  75. 

2  See  especially  the  above-mentioned  pamphlet,  and  compare 
the  following  passage:  "The  plea  is  the  same  on  either  side;  the 
Pope  says  as  long  as  the  Prince  governs  according  to  the  Laws  of 
God  and  the  Church  (of  which  He  is  the  interpreter)  so  long  the 
censures  of  the  Church  do  not  reach  Him ;  and  say  the  People, 
as  long  as  the  Prince  governs  according  to  the  Laws  of  the  Land 
(and  of  the  meaning  of  those  laws  themselves  are  the  interpreters) 
so  long  are  they  bound  to  be  obedient ;  but  as  soon  as  the  King 
doth  anything  that  may  contradict  the  Pope,  then  he  is  (deservedly 
say  the  Romanists)  excommunicate,  deposed  and  murdered,  and 
when  he  usurps  upon  the  People's  liberties,  then  he  ought  to  be 
deposed  by  the  people ;  the  arguments  on  either  side  are  the 
same  and  for  the  most  part  the  authorities. "  History  of  Passive 
Obedience  (1684),  84. 

^  "  There  is  no  authority  upon  earth  above  the  law,  much  less 
against  it,"  (Johnson,  30)  expresses  the  whole  contention  of  the 
Whigs,  which  is  opposed  to  the  theory  of  sovereignty  as  well  as  to 
Divine  Right. 

F.  15 


226 


NON-RESISTANCE  AND  THE 


argument  is  that  the  submission  of  the  early  Christians 
to  persecution  was  owing  to  the  fact  that  it  was  legal, 
while  their  (alleged)  resistance  to  Julian  was  due  to 
the  illegality  of  his  oppression^  Even  Locke  evades 
the  difficulty  by  denying  the  omnipotence  of  "  the 
legislative  "  in  all  states.  He  will  not  declare,  that 
resistance  to  law  is  ever  justifiable.  He  merely 
denies,  that  laws  which  transgress  certain  funda- 
mental principles,  are  laws  "properly  so  called'." 
So  with  Algernon  Sidney.  He  declares  that  an 
unjust  law  is  not  law'  at  all,  and  gives  as  in- 
stances the  persecuting  statutes  of  the  Lancastrian 
period*.  No  other  view  was  possible  to  him ;  for 
elsewhere  he  is  content  to  bow  before  the  majesty 
of  law.  In  one  eloquent  passage  Sidney  declares  that 
"  this  [Law]  is  he  to  whom  we  all  owe  a  simple  uncon- 
ditional obedience'."  Milton  in  his  Tenure  of  Kings 
and  Magistrates  perhaps  comes  nearer  than  most  of 
his  contemporaries  to  modern  utilitarian  views.  Yet 
he  places  the  sovereignty  in  the  people  by  a  funda- 
mental and  unalterable  law*;  and  thus  by  a  confusion 
between  natural  and  positive  law,  similar  to  that 

1  Johnson,  Julian  the  Apostate,  "  The  first  Christians  suffered 
according  to  the  laws  of  their  country,  whereas  these  under  Julian 
were  persecuted  contrary  to  law,"  28,  Answer  to  Jovian,  Answer  to 
Comtantius  the  Apostate. 

*  Second  Treatise  of  Civil  Government,  Chaps.  11,  18. 

*  Discourses  Concerning  Government,  in.  §  11. 

*  Ibid.  §  25.  6  Ihid.  §  42. 

*  Tenure  of  Kings  and  Magistrates,  Prose  Works,  ii.  11.  "The 
power  of  kings  and  magistrates  is  nothing  else  but  what  is  only 
derivative,  transferred  and  committed  them  in  trust  from  the  people 
...in  whom  the  power  yet  remains  fundamentally,  and  cannot  be 
taken  from  them  without  a  violation  of  their  natural  birthright." 


THEORY  OF  SOVEREIGNTY 


227 


made  by  Locke  and  Sidney,  he  thinks  to  escape  the 
danger  of  asserting  a  doctrine  which  then  seemed  so 
preposterous  as  that  resistance  to  law  may  ever  be 
Vnorally  justifiable. 

The  law  to  which  obedience  is  due  may  be 
Canon  Law,  'Discipline,'  Positive  Law,  Custom. 
But  obedience  to  what  is  conceived  as  law  of  some 
sort,  truly  and  not  metaphorically  speaking,  is  the 
universal  maxim.  Nearly  all  teach  the  duty  of 
obedience  to  positive  law,  for  the  law  of  the  Church 
is  equally  positive  law  if  its  claims  be  admitted. 
That  some  of  these  writers  are  feeling  their  way 
towards  the  purely  utilitarian  theory  of  obedience 
held  in  modem  times  is  undoubtedly  the  case.  But 
they  had  none  of  them  reached  it.  One  and  all  would 
have  scouted  the  bald  proposition,  fundamental  in 
utilitarian  politics,  that  a  law  having  all  the  notes 
of  law  "  simply  and  strictly  so  called  "  may  yet  be 
disobeyed,  if  it  be  oppressive  beyond  measure.  The 
practical  teaching  might  not  greatly  differ  fi:om  that 
of  a  modem  utilitarian,  for  on  most  of  these  theories 
there  would  be  ample  grounds  for  pronouncing  any 
law,  to  which  grave  objection  is  taken,  as  lacking  in 
some  essential  property  of  law  rightly  so-called. 
Yet  the  theories  of  the  seventeenth  and  nineteenth 
centuries  are  as  wide  apart  as  the  poles.  With 
very  few  exceptions,  all  political  thinkers  in  the 
seventeenth  century  regard  as  absolute  the  claims 
of  law,  as  they  define  it,  to  unquestioning,  unvarying 
obedience ;  they  teach  that  to  the  ultimate  authority 
in  the  state,  whatever  it  be,  non-resistance  is  the  last 
word  of  duty. 


228 


NON-RESISTANCE  AND  THE 


II. 


Causes 
of  this 
general 
belief  in 
the  duty  of 
unvarying 
obedience 
to  law. 


The 

Common 
Law  con- 
ceived as 
sovereign. 


Nor  is  the  explanation  far  to  seek.  The  history 
of  the  Middle  Ages  is  filled  with  the  struggle 
between  government  and  anarchy.  According  to 
the  Papal  theory,  secular  governments  are  the  anar- 
chical powers,  which  would  teach  men  to  disobey 
their  true  lord  in  obedience  to  an  inferior  authority. 
From  the  point  of  view  of  national  statesmen  it  is, 
on  the  one  hand,  the  Pope  claiming  the  deposing 
power,  the  clergy  demanding  immunities,  on  the 
other  hand,  the  feudal  lordships,  private  jurisdictions, 
livery  and  maintenance,  that  prevent  or  check  the 
unquestioned  supremacy  of  one  all-embracing  system 
of  law.  In  the  Wars  of  the  Roses  the  evils  of  this 
latter  tendency  exhibit  themselves  for  the  last  time. 
They  produce  the  reaction  in  favour  of  despotism 
and  peace  at  any  price.  For  a  long  time  after  this, 
men  will  have  ceased  to  regard  liberty  or  constitu- 
tional rights  as  of  any  importance  compared  with 
strong  government  and  the  suppression  of  private 
war.  Obedience  is  in  the  eyes  of  all  men  the 
supreme  duty  of  the  patriotic  citizen ;  and  law  the 
one  element  essential  to  the  welfare  of  the  state. 

Nor  is  it  of  statute  law  that  men  are  thinking; 
but  of  the  Common  Law,  which,  though  containing 
much  that  may  have  originally  been  directly  enacted, 
yet  possesses  that  mysterious  sanctity  of  prescription, 
which  no  legislator  can  bestow.  The  Common  Law 
is  pictured  invested  with  a  halo  of  dignity,  peculiar 
to  the  embodiment  of  the  deepest  principles  and  to 
the  highest  expression  of  human  reason  and  of  the 


THEORY  OF  SOVEREIGNTY 


229 


law  of  nature  implanted  by  God  in  the  heart  of 
man.  As  yet  men  are  not  clear  that  an  Act  of 
Parliament  can  do  more  than  declare  the  Common 
Law\  It  is  the  Common  Law,  which  men  set  up 
as  the  object  of  worship.  They  regard  it  as  the 
symbol  of  ordered  life  and  disciplined  activities, 
which  are  to  replace  the  licence  and  violence  of 
the  evil  times  now  passed  away.  Instead  of  local 
custom  or  special  privilege  one  system  shall  be 
common  to  all.  Instead  of  the  caprice  of  the 
moment,  or  the  changing  principles  of  competing 
dynastic  policies,  or  the  pleasure  of  some  great  noble, 
or  the  cunning  of  a  usurper,  there  shall  rule  in 
England  a  system,  older  than  Kings  and  Parliaments, 
of  immemorial  majesty  and  almost  Divine  authority. 
"  Law  is  the  breath  of  God ;  her  voice  the  harmony 
of  the  world."  And  the  Common  Law  is  the  perfect 
ideal  of  law ;  for  it  is  natural  reason  developed 
and  expounded  by  the  collective  wisdom  of  many 
generations.  By  it  kings  reign  and  princes  decree 
judgment.  By  it  are  fixed  the  relations  of  the 
estates  of  the  realm,  and  the  fundamental  laws  of 

1  [Judicial  Records  and  Acts  of  Parliament]  "are  but  declara- 
tions of  the  Common  Law  and  Custom  of  the  Realm  touching 
Royal  Government,"  Jenkins  Redivivus,  1;  the  repeated  attempts 
beginning  with  42  Ed.  nr.  e.  1,  to  declare  certain  Acts  of  Parlia- 
ment uurepealable  are  another  proof  of  this.  Cf.  also  Bonham's 
case  (Reports  118a).  "When  an  Act  of  Parliament  is  against 
common  right  and  reason  or  repugnant  or  impossible  to  be  per- 
formed, the  Common  Law  will  control  it  arid  adjudge  such  Act  to 
be  void."  Majestas  Intemerata  contains  a  long  legal  argument 
directed  against  the  omnipotence  of  Parliament,  and  contending 
that  "the  statute  is  but  declarative"  (8).  "An  Act  against 
payment  of  tithes  is  regarded  as  void"  (16). 


230 


NON-RESISTANCE  AND  THE 


the  constitution.  Based  on  long  usage  and  almost 
supernatural  wisdom  its  authority  is  above,  rather 
than  below  that  of  Acts  of  Parliament  or  royal 
ordinances,  which  owe  their  fleeting  existence  to  the 
caprice  of  the  King  or  to  the  pleasure  of  councillors, 
which  have  a  merely  material  sanction  and  may  be 
repealed  at  any  moment.  It  is  not  wonderful  that 
men  should  have  thought  of  the  Common  Law  as 
sovereign  by  Divine  Right ;  or  that  they  should  have 
deemed  that  it  owed  its  authority  to  something 
higher  than  the  will  of  the  Sovereign.  In  the  days 
when  English  Law  first  took  shape,  men  had  spoken 
of  it  as  superior  to  King  and  Parliament  alike,  and 
had  dreamed  of  no  sovereign's  sanction  as  needful 
to  make  it  binding.  And  so  we  find  many  in  the 
seventeenth  century  who  retain  the  notion,  and 
think,  that  the  word  "Law,  Law^"  is  enough.  For 
them  law  is  the  true  sovereign,  and  they  are  not 
under  the  necessity  of  considering  whether  King  or 
Lords  or  Commons  or  all  three  together  are  the 
ultimate  authority  in  the  state. 

III. 

With  the  But  this  was  no  longer  true  to  the  facts.  Legis- 
fifn^amie  lative  activity  had  much  increased  of  late.  In 
theory  of  fudor  times  it  effected  the  most  far-reaching  series 

sove-  .  .         .  mi  1 

reignty     of  changes  known  in  English  history.    The  central 
possTble  in  power  had  asserted  its  supremacy  over  aristocratic 
England,  privilege  and  made  good  its  independence  against 
the  Papacy. 

1  "  Truly  for  these  many  years  last  past  have  the  lawyers  en- 
slaved both  the  king  and  the  people  by  the  charm  of  'Law,  law'." 
The  Church's  Eleventh  Persecution,  7. 


THEORY  OF  SOVEREIGNTY 


231 


At  last  there  was  room  in  English  politics  for  a 
complete  theory  of  sovereignty.  The  vast  increase 
in  the  powers  and  activity  of  the  legislator  could  not 
fail  to  drive  men  to  seek  for  the  sanction  of  the 
law  in  his  will.  They  were  forced  to  consider  the 
question,  whether  Kings  are  anterior  to  law,  or  law 
to  governments.  Here  there  is  a  distinction  capable 
of  splitting  into  two  parties  the  believers  in  the 
Divine  Right  of  the  law  of  the  land.  On  the  one 
hand  those  who  believe  that  custom  is  the  main 
element  in  law,  and  law  therefore  the  king-maker, 
naturally  claimed  to  make  the  Judges,  as  inter- 
preters of  the  law,  the  supreme  power  in  the  state ; 
while,  like  Bracton,  they  themselves  failed  to  see 
the  necessity  of  a  sovereign  one  or  number  and 
honestly  believed  that  no  power  in  the  state  is 
exempt  from  legal  limitation.  On  the  other  hand, 
those  who  have  gi-asped  the  notion,  now  first  made 
apparent  by  facts,  that  there  must  be  a  sovereign  in 
the  state,  who  may  give  to  laws  their  efficacy,  will 
claim  that  he  is  ipso  facto  above  the  laws,  and 
cannot  be  subject  to  their  coercive  power.  The  inevitable 
quarrel  between  the  Crown  and  the  Judges  was  not  ^""sy^ 
only  the  forerunner  of  the  greater  quarrel  between  between 

-rr-  iT-ii-  •  •       •11-  supporters 

Kmg  and  rarliament :   it  was  mevitable  in  the  of  the 
nature  of  things.    The  Judges,  as  professors  of  the  ^j^^^^^ 
Common  Law,  claimed  for  it  supreme  authority,  and  Common 
had  their  claim  been  admitted,  would  have  made 
themselves  the  ultimate  authority  in  the  state.  For 
no  one  denied  their  right  to  interpret  the  law.  The 
King,  realizing  vividly  that  there  must  be  a  sovereign, 
claimed  naturally  enough  the  position  asserted  for 


232  NON-RESISTANCE  AND  THE 

the  Judges.  What  the  Judges  really  asserted  was 
that  all  constitutional  questions  could  be  settled  by 
a  reference  to  custom,  and  that  they  alone  were 
competent  to  declare  it.  This,  as  Mr  Gardiner  points 
out,  would  have  given  into  their  hands  the  decision 
of  the  great  struggle  of  the  seventeenth  century  ^ 
Coke,  like  most  of  the  opponents  of  the  King,  had  not 
really  grasped  the  conception  of  sovereignty;  he  main- 
tained a  position,  reasonable  enough  in  the  Middle 
Ages,  but  impossible  in  a  developed  unitary  state. 
For  his  claim  and  that  of  all  the  Common  Lawyers 
was  to  personify  the  Common  Law  as  sovereign,  and 
to  deny  that  character  to  any  person  or  body  in  the 
state.  Had  his  ideal  been  reached,  and  questions  of 
interpretation  (which  made  the  Judges  sovereign) 
settled  once  for  all,  England  would  have  been  in  the 
condition  of  the  Punjaub  under  Runjeet  Singh,  as 
described  by  Sir  Henry  Maine,  where  the  person 
"  habitually  obeyed "  never  made  a  true  law  and 
was  deemed  incapable  of  making  one^  The  fact, 
lamented  by  Clarendon,  that  the  "  professors  of  that 
great  and  admirable  mystery,  the  Law  "  were  on  the 
Puritan  side,  was  inevitable^  For  their  view  was 
towards  a  state  of  things  that  had  ceased  to  exist, 
and  they  sought  to  explain  the  constitution  of  England 
as  Bracton  might  have  done.  But  the  King  had  per- 
ceived that  with  the  growth  of  legislative  activity  and 

'  For  accounts  of  Coke's  views  and  the  various  controversies 
wbich  culminated  in  his  suspension,  see  Gardiner,  History  of 
England,  ii.  35—43,  242,  279,  iii.  1—25. 

^  Early  History  of  Institutions,  379  sqq. 

3  History  of  the  Rebellion,  iv.  38 — 41. 


THEORY  OF  SOVEREIGNTy 


233 


the  victory  of  the  central  power  over  its  enemies, 
sovereignty  had  become  a  fact,  and  past  history 
justified  him  in  laying  claim  to  all  that  was  in- 
volved in  the  new  state  of  things.  It  is  the  King 
and  his  supporters,  be  it  observed,  who  first  saw  the 
change.  Parliament,  unwilling  at  first  to  claim  the 
sovereignty,  denies  that  it  exists.  On  the  other 
hand,  if  the  King  had  been  permitted  to  retain  all 
his  traditional  prerogatives,  the  general  recogni- 
tion of  the  idea  of  sovereignty  would  have  made 
the  government  a  tyranny;  as  Maitland  said,  it 
was  only  the  lack  of  this  recognition  that  saved 
England  fi-om  falling  into  despotism  in  the  Middle 
Ages.  Now  that  the  truth  was  soon  to  be  recog- 
nized by  the  nation  at  large,  Parliament  was  forced 
to  make  new  claims  and  by  degrees  to  gTasp  at 
supremacy,  lest  it  should  lose  old  rights  or  even 
forfeit  equality.  With  many  modifications,  the 
controversies  between  Whigs  and  Royalists  right 
up  to  the  Revolution  hinged  on  this  question  of 
sovereignty.  One  side  has  ever  before  it  the  vision 
of  law  conceived  as  a  system  existing  by  Divine 
Right,  its  origin  lost  in  the  past,  independent  of 
circumstances  and  men's  caprice,  superior  to  Kings, 
and  controlling  Parliament.  The  other  side  lays  stress 
on  the  conception  of  a  sovereign  raised  above  all 
laws  with  power  to  abrogate  them,  who  alone  can 
give  binding  force  to  enactments  and  invest  custom 
with  legal  sanctions.  The  supporters  of  the  Crown 
are  repeatedly  found  arguing  that  the  King  must  be 
before  and  above  the  law,  or  how  can  it  be  binding  ? 
They  are  em-aged  at  the  stupidity  of  their  opponents. 


* 


234 


NON-RESISTANCE  AND  THE 


This 
question 
forms  the 
main 
gro7ind 
of  contro- 
versy up 
to  the  Re- 
volution. 


who  cannot  admit  so  obvious  a  fact.  The  novelty  of 
the  notion  of  sovereignty  is  the  explanation  of  the 
otherwise  unaccountable  views  entertained  by  those 
judges  who  favoured  the  Crown's  claims  as  to  the 
King's  extraordinary  power'.  They  saw  that  law 
can  never  bind  the  '  sovereign '  in  any  state,  and 
they  were  therefore  driven  to  enlarge  the  meaning 
of  prerogative  to  an  alarming  extent.  The  very 
fact  that  the  idea  of  sovereignty  had  only  then 
disengaged  itself  from  a  belief  in  the  supremacy  of 
custom,  would  compel  all  those,  who  were  imbued  with 
the  idea,  to  treat  of  the  King's  prerogative,  as  the  basis 
and  essence  of  the  whole  system  of  law,  rather  than  as 
an  aggregate  of  exceptional  powers  and  discretionary 
authority  allowed  to  him  by  well-established  custom. 
Sovereignty  presented  itself  to  these  men  with  all 
the  force  of  a  discovery,  and  in  their  enthusiasm  for 
the  abstract  conception,  they  used  language  which 
justified  their  opponents  in  declaring  that  they  were 
interpreting  the  law,  so  as  to  give  the  King  a  truly 
arbitrary,  i.e.  capricious  authority. 

The  doctrine  of  sovereignty  was  perhaps  mis- 
conceived in  some  of  its  details,  or  not  grasped  with 
absolute  precision.  Yet  certainly,  from  the  point  of 
view  of  political  theory,  the  controversy  between 
Royalists  and  Parliamentarians  differs  merely  in  its 
practical  object,  from  the  questions,  which  every 
student  of  Austin  is  driven  to  ask  himself,  "At  what 
point  does  custom  become  law  ?  And  how  is  it  made 


'  See  especially  the  judgment  of  Chief  Baron  Fleming  in 
Bates'  case  printed  in  Prothero's  Documents,  340,  and  of  Berkeley 
in  Hampden's  case  in  Gardiner's  Documents,  46. 


THEORY  OF  SOVEREIGNTY 


235 


such  ? "  The  point  has  been  much  debated  of  late 
years ;  yet  it  may  be  doubted  whether  thei'e  is  any 
substantial  agreement  among  writers  on  jurispru- 
dence. If  thinkers,  whose  only  object  is  scientific 
investigation,  are  not  yet  agreed  as  to  what  is  the 
true  answer  to  these  questions,  there  is  no  great 
cause  to  blame  the  disputants  on  either  side  in  the 
seventeenth  century.  The  problem  as  to  the  precise 
value  of  the  maxim,  "  Whatever  the  sovereign  per- 
mits, he  commands,"  will  not  improbably  continue 
to  perplex  us  till  the  end  of  time.  But  this  much 
is  certain.  The  facts  of  English  history  had  for  the 
first  time  rendered  complete  sovereignty  a  necessity 
in  English  national  life.  The  question,  in  whom 
the  sovereignty  should  ultimately  be  vested,  could 
only  be  decided  by  a  century  of  struggle.  The  sove- 
reignty of  whatever  person  or  body  was  the  highest 
authority  in  the  English  State  became  a  practical 
fact  at  the  Refoi'mation.  Only  those  who  were  the 
least  hampered  by  tradition  would  be  gifted  with 
the  clearness  of  insight  necessary  to  perceive  this. 
All  whose  imaginations  were  dominated  by  the  past 
would  fail  for  a  time  to  observe  the  change.  The 
leaders  of  advance  in  this  matter  were  the  believers 
in  Divine  Right. 

The  omnipotence  of  Parliament  is  doubtless  real- 
ized sufficiently  at  the  present  day  by  many  persons, 
who  would  be  at  a  loss  to  understand  some  of  the 
details  of  the  theory  of  sovereignty.  It  is  not  sur- 
prising that  the  first  perception  of  the  notion  takes 
at  first  a  practical,  rather  than  a  scientific  form. 
For  most  men  the  idea  will  be  suggested  by  the 


236 


NON-RESISTANCE  AND  THE 


observed  fact  of  the  existence  of  a  sovereign. 
They  will  not  frame  the  theory,  and  afterwards 
observe  the  facts.  Now  it  is  unlikely  that  those, 
whose  gaze  was  turned  to  the  England  of  the  six- 
teenth century,  could  suppose  that  sovereignty  was 
invested  in  any  other  person  than  the  King.  Here 
and  there,  a  man  like  Prynne  or  Sir  Thomas  Smith 
may  be  found  arguing  that  not  the  King,  but 
Parliament  is  truly  sovereign\  Yet  most  men  will 
arrive  at  the  idea  of  sovereignty  because  they  will 
seem  to  see  it  encircling  the  diadem  of  Henry  VIII. 
or  Elizabeth.  As  was  shewn  above,  the  course  of 
circumstances  would  lead  men  to  suppose  that  the 
sovereignty  was  vested  in  the  Crown  and  not  in 
Parliament.  The  perception  of  this  fact  inevitably 
led  to  the  exaltation  of  the  position  of  the  King, 

1  The  very  fact  that  Prynne  knows  that  his  treatise  will  seem 
a  dangerous  paradox  is  proof  that  his  views  were  not  generally 
accepted  {Sovereign  Power  of  Parliaments,  To  the  Eeader).  Bishop 
Sanderson,  again,  considers  the  mere  words  of  the  oath  of  supre- 
macy as  quite  sufficient  proof  that  the  sovereignty  is  vested  in  the 
King,  and  not  the  Parliament  (Preface  to  Ussher's  Power  of  the 
Prince).  The  personal  character  of  allegiance,  as  defined  by  all  the 
Judges  in  Calvin's  case,  was  another  bar  to  men's  dreaming  of 
Parliament  as  the  actual  depositary  of  sovereign  authority.  The 
views  quoted  above  as  to  the  possibility  of  avoiding  Acts  of  Parlia- 
ment would  similarlyhiuder  the  growth  of  a  belief  in  Parliamentary 
sovereignty.  Nor  is  there  as  yet  one  imperial  Parliament;  it  is 
to  the  King,  not  the  Parliament  that  inhabitants  of  England, 
Scotland  and  Ireland  are  united  in  allegiance.  If  the  three  are 
to  make  one  realm,  it  can  only  be  because  the  King  is  sovereign. 
The  United  Parliament  of  Cromwell  made  Parliamentary  sove- 
reignty a  possibility.  It  is  noteworthy  that  theories  of  popular 
sovereignty  in  the  seventeenth  century  are  not  in  general  theories 
of  technical  sovereignty  vested  in  Parliament,  but  doctrines  of  the 
rights  of  the  people  in  the  last  resort. 


THEORY  OF  SOVEREIQNTV 


237 


and  to  a  depreciation  of  the  rights  of  Parliament  and 
the  rules  of  Law.  Only  as  this  took  place,  would 
those,  who  were  determined  to  stand  by  the  rights 
of  Parliament  and  by  the  ancient  conventions  of  the 
constitution,  gradually  rise  to  the  conception  of 
Parliamentary  sovereignty,  and  find  in  the  privilege 
of  Parliament  a  treasury  of  omnipotence  not  inferior 
in  elasticity  and  controversial  convenience  to  the 
undefined  possibilities  of  royal  prerogative  ^ 

IV. 

The  Divine  Right  of  Kings  on  its  political  side  The 
was  little  more  than  the  popular  form  of  expression  ^J^^" 
for  the  theory  of  sovereignty.    As  an  abstract  theory  Kings  is 
the  idea  is  never  likely  to  be  widely  prevalent.    But  laken^iri 
sovereignty  seen,  as  a  fact,  vested  in  a  person  or  'g^^*^"*"' 
body  of  persons  may  lead  men  to  frame  a  theory  far  century  by 
more  generally  intelligible  and  practically  efiective  ^^^^J^^g_^ 
than  the  academic  analysis  of  the  notion  in  Austin,  reignty. 
or  even  in  Hobbes  and  Bodin,  can  ever  become. 
This  is  the  case  with  the  Divine  Right  of  Kings. 
Evidence  of  the  fact  may  be  found  in  plenty.  Many 
of  the  most  strenuous  supporters  of  the  Divine  Right 
of  Kings  declare  that  similar  rights  belong  to  all 
established  governments,  and  that  non-resistance  to 
their  authority  is  equally  a  duty.   On  the  other  hand, 
the  opponents  of  the  theory  are  fi-equently  found 
attacking  not  so  much  royal  authority,  as  the  idea 
of  sovereignty.     Moreover  Hobbes,  who   has  the 

'  Clarendon  traces  the  process  by  which  the  privilege  of  Parlia- 
ment was  extended  by  imperceptible  degrees  to  cover  an  assumption 
of  complete  sovereignty.    History  of  the  Rebellion,  passim. 


238 


NON-RESISTANCE  AND  THE 


reputation  of  being  the  first  Englishman  in  the  seven- 
teenth century  to  formulate  the  complete  theoiy  of 
sovereignty,  did  not  analyse  it  as  a  purely  scientific 
notion,  but  had  with  his  contemporaries  the  object 
of  proclaiming  the  duty  of  invariable  obedience  and 
non-resistance  to  the  sovereign  in  all  states.  The 
analysis  of  sovereignty  is  only  incidental  to  the 
practical  object  of  inculcating  non-resistance.  So 
with  supporters  of  Divine  Right. 
Divine  Bishop  Overall's  Convocation  Book  was  avowedly 

^ings  compiled  in  the  support  of  monarchy.  The  object  of 
confused    the  book  is  to  assert  the  Divine  Right  of  Kings, 

with  non-         i     i       i  ^  •  TT       --r.  ii 

resistance  and  the  duty  01  non-resistance.     Yet  it  is  or  all 

'"."11-  1.  J  established  srovernments  that  this  Divine  authority 
established  °  _ 

govern-  is  really  asserted.  True,  arguments  in  favour  of  the 
ments.  superiority  of  monarchy  are  drawn  from  the  patriarchal 
theory ;  yet  the  statement  is  made  that  after  rebels 
have  organized  a  government,  its  authority  is  fi-om 
God.  This  statement  is  flatly  subversive  of  the  in- 
defeasible hereditary  right,  and  was  on  that  ground 
distasteful  to  James  I.^  It  is  evident  that  there  was 
confusion  in  the  minds  of  the  compilers,  and  that  the 
element  in  their  doctrine  which  was  grasped  with 
lucidity  was  the  idea  that  some  sovereign  power 
existed  in  all  states,  that  this  sovereign  power  owed 
its  authority  to  Divine  ordinance,  and  that  resistance 
to  it  is  a  sin. 

Hickes,  who  became  a  non-juror,  wrote  his  Jovian 
in  the  midst  of  the  Exclusion  Bill  controversy.  Yet 
he  distinctly  asserts  that  all  established  governments 

>  Overall's  Convocation  Book,  Canon  xxviii.    James'  Letter  is 
printed  in  the  preface. 


THEORY  OF  SOVEREIGNTY 


289 


aj-e  from  God,  and  that  the  Biblical  prohibitions 
of  resistance  are  fully  as  applicable  to  the  subjects 
of  a  republic  as  to  those  of  a  monarchy. 

The  work  of  Dudley  Digges,  The  Unlawfulness 
of  Subjects  taking  up  arms  against  the  Sovereign,  is 
still  stronger  evidence  that  the  most  important 
elements  in  the  theory  of  Divine  Right  are  the 
conception  of  sovereignty  and  of  non-resistance  to 
the  sovereign,  whether  King  or  Parliament.  Except 
for  the  addition  of  the  religious  sanction  to  obedience, 
and  for  the  use  of  scriptural  illustrations,  we  might 
be  reading  a  popular  abridgment  of  the  Leviathan. 
The  theory  of  the  origin  of  the  state  held  by  Hobbes 
is  definitely  adopted.  The  author  does  not  assert 
that  kingship  as  such  is  viewed  with  any  special 
favour  by  God.  Arguments  based  on  the  Old 
Testament  and  patriarchal  society  are  dismissed  as 
irrelevant'.  All  that  is  claimed  is  that  England  is, 
as  a  matter  of  fact,  a  monarchy,  and  that  resistance 
to  all  established  governments  is  a  sin.  Ussher, 
again,  argues  that  sovereignty  is  a  necessary  natural 
fact*.  Even  Laud  declares  that  he  has  no  will  to 
except  against  any  form  of  government  assumed  by 
any  state'.  Although  Filmer's  sense  of  the  need  of 
unity  in  the  state  leads  him  to  regard  monarchy  as 
the  only  true  form  of  government*,  yet  in  another 

'  The  Unlawfulness  of  Subjects  taking  up  Arms,  16. 

2  "  True  it  is  that  in  several  states  there  are  admitted  several 
forms  of  government."  "If  this  be  so,  and  that  nature  seeketh 
always  to  preserve  itself,  we  may  justly  conclude  that  Magistracy 
is  rooted  in  the  Law  of  Nature  and  so  in  the  Author  of  Nature, 
that  is  God  himself."    Power  of  the  Prince,  12,  13. 

'  Sermons,  iii.  {Works,  i.  85).       *  Ohservations  on  Aristotle. 


240 


NON-RESISTANCE  AND  THE 


place  he  speaks  of  the  supreme  power  in  any  state, 
monarchy  or  republic,  as  nothiug  but  the  original 
power  of  the  father  ^ 

Doubtless  such  works  as  the  Convocation  Book  and 
Jovian  exhibit  less  grasp  of  what  is  really  involved 
in  the  theory  of  Divine  Right  than  is  the  case  with 
the  True  Law  of  Free  Monarchies  or  the  Patriarcha. 
There  is  confusion  in  the  minds  of  the  writers, 
yet  they  believe  themselves,  and  have  always  been 
commonly  regarded  as,  supporters  of  Divine  Right. 
The  essence  of  the  theory  must  therefore  lie  in  those 
doctrines,  upon  which  they  lay  stress  in  common 
with  the  more  accurate  expounders  of  the  notion. 
Those  points,  which  are  obscured  or  ignored  by  so 
strong  a  non-juror  as  Hickes,  can  at  most  be  regarded 
as  "  organic  details  "  of  the  theory,  rather  than  as  its 
main  and  vital  principles^. 
The  con-         Still  more  clearly  is  it  evident  that  the  real 
not'°^      q^^sstion  in  dispute  is  the  fact  of  sovereignty,  and 
grasped     ^he  origin  of  legal  authority,  if  attention  be  paid 
opposite     to  the  repeated  attempts  made  to  convince  Whig 
party.       theorists,  that  no  state  can  be  without  an  ultimate 


*  Patriarcha,  23. 

2  The  writings  of  the  non-juror  Leslie  are  the  most  vivid  ex- 
pression of  royalist  theory  after  the  Revolution.  It  is  plain  that 
he  is  moved  by  no  hatred  of  republicanism,  but  merely  by  the 
dread  of  anarchy.  "There  is  no  medium  possible  betwixt  non- 
resistance  upon  any  pretence  whatsoever  and  a  full  licence  to 
resist  upon  every  pretence  whatsoever.  Because  every  man  is  left 
to  judge  of  the  pretence.  So  that  the  whole  dispute  is  Whether 
government  or  anarchy?"  (The  Best  Answer.)  "For  the  word 
King,  I  mean  no  more  than  the  supreme  authority."  {Best  of  all.) 
See  Appendix. 


THEORY  OF  SOVEREIGNTY 


241 


authority,  which,  because  it  is  sovereign,  must  be 
technically  arbitrary.  "  The  name  of  tyranny  signi- 
fieth  nothing  more  nor  less  than  the  name  of 
sovereignty,"  says  Hobbes'.  "There  is  a  necessity 
that  somebody  must  be  trusted,  if  you  will  not 
trust  one,  you  must  trust  more "  declares  Digges". 
"  There  is  no  such  thing  as  a  free  state  in  the 
world*"  is  the  thesis  of  another.  Laud  wiites, 
"  Turn  the  knot  which  way  you  will,  all  binding  to 
obedience  will  be  grievous  to  some*."  Another  asks, 
"  What  State  can  these  rebels  have  that  may  not 
degenerate  into  a  tyranny'?"  Indeed,  during  the 
troubles  of  the  Commonwealth  the  notion  might  easily 
be  generated  that  tyranny  is  no  less  possible  under  a 
Parliament  than  under  a  King.  It  is  a  pertinent 
question,  "  The  will  of  one  man  is  contrary  to  freedom, 
and  why  not  the  will  of  five  hundred^  ?  "  Royalists 
writing  on  this  matter  habitually  speak  with  the 
half-amazed  irritation  of  a  teacher,  trying  in  vain  to 
get  wilfully  stupid  pupils  to  realize  how  chimerical 

1  Leviathan,  392.  Hobbes  characteristically  adds  "  saving  that 
they  that  use  the  former  word  are  understood  to  be  angry  with 
them  they  call  tyrants."  In  Behemoth,  112,  Hobbes  shews  that 
all  governments  are  really  arbitrary:  and  goes  on,  "The  true 
meaning  of  Parliament  was  that  not  the  King,  but  they  them- 
selves should  have  the  arbitrary  power  not  only  of  England,  but 
of  Ireland  and  (as  it  appeared  by  the  event)  of  Scotland  also." 

^  The  Unlawfulness  of  Subjects  taking  up  Arms  (79) ;  cf.  also 
p.  43,  "  A  necessity  to  grant  impunity  to  some  in  all  governments." 

*  Royal  Charter  granted  unto  Kings  (Chap.  xiv.). 

*  Sermons,  vi.  {Works,  i.  180) :  cf.  with  this  Mr  Sidgwick'e 
Remarks  on  the  "coercion  of  well-intentioned  adults,"  Elements 
of  Politics,  623. 

»  EIKON  AKAA2T02,  a  reply  to  Milton's  Iconoclastes. 
'  Ibid.    There  is  much  more  in  the  same  strain. 

F.  16 


242 


NON-RESISTANCE  AND  THE 


is  the  dream  of  a  perfect  state  with  no  power  in  it 

exempt  from  legal  limitation. 
Locke's  Yet  more  is  this  apparent  in  the  most  striking 

anatuilk  exposition  of  the  opposite  theory.  Locke's  treatise 
on  the       ia  expressly  directed  against  the  notion  that  there  is 

idea  of  ^  P     ,  , 

save-  any  sovereign  power  m  the  state.  He  realizes  that 
reignty.  legislative  is  supreme,  yet  he  sets  himself  the 

task  of  fencing  it  about  with  limitations  of  many 
kinds,  such  as  the  duty  of  respecting  liberty  and 
property,  etc.*  Locke  does  not  say  that  the  trans- 
gressing of  these  limits  is  invariably  inexpedient 
or  even  universally  iniquitous.  This  may  be  true ; 
certainly  it  is  tenable.  But  he  tries  to  prove  that 
such  action  would  be  illegal.  If  the  '  Legislative ' 
oversteps  the  bounds  which  Locke  has  laid  down  for 
it,  its  authority  is  at  an  end,  and  the  state  is  dis- 
solved. Perhaps  it  would  be  hard  to  mention  a  single 
Parliament  since  the  Reform  Act  which  has  not  over- 
stepped the  limits  of  its  competence  according  to 
Locke,  and  by  so  doing  dissolved  the  state,  and 
broken  the  continuity  of  our  institutions  and  the 
whole  system  of  law  and  government.  The  more 
closely  Locke's  treatise  is  studied,  the  more  clearly 
will  it  be  seen  that  it  is  an  attack  directed  far  more 
against  the  idea  of  sovereignty,  than  against  the 
claims  of  absolute  monarchy.  The  notion  of  legal 
omnipotence  is  abhorrent  to  him ;  and  he  is  guilty 
of  a  confusion  between  law  natural  and  law  positive, 
from  which  the  extremest  and  most  reactionary 
royalist  would  have  been  free. 

1  Second  Treatise,  e.  11.    Johnson's  writings  are  dominated  by 
a  disbelief  in  the  theory  of  sovereignty. 


THEORY  OF  SOVEREIGNTY 


243 


Algernon  Sidney's  Discourses  concerning  Govern-  Sidney  and 
ment,  and  even  Milton's  Tenure  of  Kings  and 
Magistrates,  exhibit  an  almost  equal  want  of  insight. 
The  definite  ground  assumed  is  that  of  Rousseau,  that 
the  people  is  sovereign,  that  this  sovereignty  comes 
from  God  and  is  inalienable.  All  governments  are  in 
their  view  merely  officials  carrying  out  the  will  of 
the  sovereign  people,  and  they  may  therefore  be 
removed  at  any  time'.  This  view  is  apparently  also 
that  of  Mariana  and  Suarez,  and  is  far  more  consistent 
and  logically  defensible  than  the  common  Whig  theory. 

Yet  this  view  is  also  untenable,  for  in  no  state,  at 
that  time  or  now,  can  the  legal  sovereignty  be  said 
to  be  vested  in  the  people.  It  may  be  true  that  it 
ought  to  be  so  vested ;  but  it  certainly  is  not  the 
case  in  any  modern  state.  The  sense  in  which 
Milton  and  Sidney  spoke  of  sovereignty  being  vested 
in  the  people  is  one  which  proves  them  incapable  of 
realizing  the  notion  of  sovereignty  with  accuracy. 
It  is  with  them  little  more  than  the  expression  of 
the  belief  in  a  general  right  of  insurrection  against 
intolerable  oppression.  To  such  a  belief  there  would 
be  no  objection,  if  they  did  not  use  their  loose 
interpretation  of  the  term  sovereignty,  as  a  ground 
for  denying  the  existence  of  the  thing.  They  deny 
the  fact  of  sovereignty  save  in  a  perfect  democracy. 
This  may  be  an  ideal,  but  it  is  not  the  expression  of 
existing  conditions.  That  the  people  ought  to  be 
sovereign  is  a  tenable  view.  But  to  assert  that  they 
are  so  as  a  matter  of  fact,  and  that  any  state,  in  which 

1  Discourses  Concerning   Government,  Chap.  iii.    Tenure  of 
Kings  and  Magistrates,  14. 

16—2 


244 


NON-RESISTANCE  AND  THE 


they  are  not  so  regarded,  is  not  truly  a  state,  is  to  be 
guilty  of  a  gross  confusion  of  ideas.  Milton's  view  that 
"  to  say  the  king  is  accountable  to  none  but  God  is 
the  overturning  of  all  law  and  all  government^ "  would 
logically  lead  to  the  denial  of  law  and  government 
in  the  Roman  Empire  or  the  French  kingdom.  The 
confusion  of  Sidney's  thought  is  yet  more  startling. 
After  propounding  the  theory  of  popular  sovereignty 
he  goes  on  to  assert,  quite  in  the  Austinian  manner, 
that  the  power  of  the  lawgiver  is  arbitrary.  He 
then  proceeds  to  argue  that  this  power  is  in  England 
vested  in  the  Parliament^.  The  inconsistency  is 
glaring.  The  people  is  sovereign;  yet  a  small 
number  of  them  assembled  in  Parliament  have  the 
'arbitrary,'  i.e.  sovereign  power  of  making  laws. 
Even  if  Parliament  be  held,  which  it  cannot  be  save 
in  a  loose  sense,  to  govern  in  the  name  of  the 
electors,  and  if  sovereignty  be  ascribed  to  them,  yet 
the  electorate  was  very  far  from  being  identical  with 
the  people  when  Sidney  wrote. 
Theory  of  Even  the  theory  of  the  original  compact  affords 
compact,  evidence  that  the  popular  party  had  not  clearly 
grasped  the  notion  of  law  and  sovereignty.  Austin 
shews  how  untenable  is  the  notion,  that  a  compact 
can  be  binding  with  no  sovereign  to  enforce  it.  The 
widespread  prevalence  of  the  theory  may  therefore 
be  taken  as  evidence,  that  the  men  who  held  it 

^  Tenure  of  Kings  and  Magistrates,  12. 

^  Discourses  Concerning  Government,  m.  §§  21,  45,  46.  Sidney 
regards  Filmer's  exposition  of  sovereignty  as  proving  nothing  but 
"  the  incurable  perverseness  of  bis  judgment,  the  nature  of  his  heart 
and  the  malignity  of  his  fate  always  to  oppose  reason  and  truth. " 


THEORY  OF  SOVEREIGNTY  245 

believed  in  law  as  resting  mainly  on  moral  sanctions, 
as  independent  of  ph3'sical  force  and  possessed  of 
Divine  authority.  The  theory  that  government  and 
obedience  result  from  a  binding  compact  could  only 
be  credited  by  men,  who  instinctively  regarded  law 
as  anterior  to  the  state. 


From  all  this  it  appears  that  all  parties  in  the  All  parties 

seventeenth  century  are  at  bottom  united  in  their  respect 

respect  for  law  and  iu  anxiety  to  defend  government ; 

although  they  differ  as  to  the  nature  of  both.    Law  to  nature 

must  be  supreme,  anarchy  at  all  costs  must  be  pre-  "■^  i"^ 

,    ,  •[  ^ ,     and  sove- 

vented.  This  is  the  dominant  thought  of  influential  reignty. 
writers  on  all  sides.  Yet  one  party  in  their  reverence 
for  law  would  seek  to  invest  it  with  a  quasi- 
sovereign  authority,  and  would  deny  to  present  and 
future  generations  the  power  of  substantially  changing 
it.  For  it  is  law,  as  a  product  of  custom  and  ancient 
statutes  hardly  distinguished  from  custom,  that  is 
reverenced  by  the  Whigs.  The  other  party  had 
deeper  insight.  They  saw  that  in  no  civilized  state 
can  law  exist  without  a  lawgiver,  and  they  deduced 
the  necessity  of  a  true  sovereign.  Both  sides  agree 
in  inculcating  non-resistance  to  the  power  which  is 
regarded  as  the  ultimate  authority,  whether  law  or 
lawgiver.  Doubtless  the  supporters  of  the  monarchy 
made  mistakes.  They  pushed  to  extremes  their  doc- 
trine of  the  theoretical  omnipotence  of  the  sovereign 
power,  and  seemed  at  times  indisposed  to  recognize  the 
importance  of  practical  limitations  on  the  exercise 
of  sovereignty.    Of  what  have  been  called  "  internal 


4 


246 


NON-RESISTANCE  AND  THE 


limits  "  on  the  sovereign  power,  restrictions  imposed 
by  temperament  and  environment,  they  admit  the 
wisdom.  But  their  theory  of  non-resistance  forbids 
them  to  allow  of  any  external  limits.  Yet  it  remains 
true  that  the  royalist  party  had  in  general  far  clearer 
notions  on  law  and  government  in  a  modern  state, 
than  had  their  opponents,  who  are  often  incapable 
of  distinguishing  between  natural  and  positive  law, 
and  are  ever  haunted  by  the  vain  illusion  of  placing 
legal  limits  on  the  sovereign  power. 
Funda-  Once  the  fact  is  grasped  that  the  Divine  Right 

Laj«!''  of  Kings  in  its  philosophical  aspect  is  merely  the 
form  given  by  circumstances  to  a  doctrine  of  sove- 
reignty, many  of  its  most  characteristic  notions  will 
present  themselves  in  a  fresh  light.  The  phrase  "  fun- 
damental law,"  of  which  so  much  is  heard,  signifies 
what  a  modern  philosopher  has  classed  among  "  the 
fundamental  conceptions  of  politics  S"  and  indicates 
merely  belief  that,  if  the  state  be  truly  such,  there 
must  be  a  sovereign  and  subjects.  Hickes'  division 
of  laws  into  laws  positive  and  laws  imperial  is  another 
way  of  expressing  the  same  notion;  laws  imperial 
merely  mean  those  facts,  which  are  inherent  in  the 
nature  of  the  state,  and  which  must  exist  before 
laws  properly  so  called  arise. 
Indefeas-  The  view  that  hereditary  right  is  indefeasible 
ditary  is  another  element  in  this  conception.  Or  rather  it 
right.  ^]^q  form  given  to  that  notion  of  the  inalienable 

*  Sidgwick,  Elevients  of  Politics,  Chap.  ii.  It  need  hardly  be 
said  that,  in  the  view  of  all  orthodox  supporters  of  Divine  Eight, 
the  statutes  of  the  Tudor  period  altering  the  succession  are  one  and 
all  ultra  vires  and  void. 


THEORY  OF  SOVEREIGNTY 


247 


character  of  sovereignty,  which  (however  insignificant 
practically)  is  yet  sure  to  arise  with  the  conception 
of  sovereignty.  It  is  doubtless  a  limitation  on  the 
sovereignty  to  deny  the  power  of  the  sovereign  to 
alter  the  form  of  government.  Yet  it  would  be  hard 
to  find  a  better  sanction  for  many  branches  of  so- 
called  constitutional  law  at  the  present  day,  than 
that  the  courts  will  enforce  them.  So  with  in- 
defeasible hereditary  right ;  so  long  as  the  view  could 
be  maintained  that  the  courts  would  enforce  the 
doctrine,  it  was  not  unnaturally  regarded  as  a  part 
of  constitutional  law. 

The  doctrine  that  the  rights  of  Parliament  are  Power  of 
derived  from  the  Crown  only  as  matters  of  grace  n^nt'due 
and  favour,  was  characteristic  of  the  mind  of  King  ^"V'^'' 
James,   and   became   the   ground   of  controversy  may  be 
both  in  his  own  case  and  that  of  Dr  Cowell.    It  '■'<'«'^'*- 
afterwards  became  the  accepted  principle  with  the 
royalist  \vriters.    The  doctrine  is  really  an  expression 
of  the  sense  that  sovereignty  is  indivisible  as  well 
as  inalienable.    So  it  is  used  by  Bodin',  who  has  an 
elaborate  proof  that  the  so-called  power  of  the 
estates  of  the  realm  being  merely  grants  from  the 
sovereign  does  not  imply  any  diminution  or  division 
of  his  power.    He  seeks  to  shew  that  in  the  case 
of  England  the  assent  of  Parliament  to  new  laws  is 
not  really  indispensable.    It  is  a  maxim,  that  the 
donor  of  a  right  or  privilege  may  reclaim  it  at  any 
moment,  because  sovereignty  being  indivisible  and 
inalienable,  no  sovereign  right  can  be  irrevocably 
resigned.    Thus  it  seemed  natural  to  assert,  that 
^  De  la  Eepublique,  139. 


248 


NON-RESISTANCE  AND  THE 


because  King  John  granted  Magna  Charta,  all  the 
powers  resigned  by  him  still  inhere  in  the  King 
and  may  be  recalled.  The  repeated  historical  proof 
that  the  Crown  was  at  one  time  seised  of  such  and 
such  rights,  and  that  it  still  possesses  them  in  theory, 
is  evidence  of  the  hold  upon  men's  minds  of  the 
notions  of  the  indi\'isible  and  inalienable  character 
of  sovereignty.  They  cannot  conceive  that  the  King 
can  really  have  lost  any  prerogative,  which  can  be 
clearly  shewn  to  have  once  belonged  to  him^ 

In  the  theory  of  the  Divine  authority  of  govern- 
ment all  sides  are  agreed.  In  some  form  most  men 
hold  that  non-resistance  is  a  religious  duty.  It  is  the 
theory  of  sovereignty  which  differentiates  the  royal- 
ist writers  fi'om  the  popular  side  and  unites  them 
with  Hobbes.  For  the  Leviathan  contains  not  only  a 
theory  of  sovereignty,  but  also  a  demonstration  that 
monarchy  is  the  best  form  of  government,  that  the 
English  state  is  in  tact  a  )nonarchy,  and  that  re- 
sistance to  the  sovereign  is  never  justifiable.  Thus, 
then,  the  affinity  between  the  theories  of  Divine 
Right  and  that  of  Hobbes'  was  far  closer  than  is 
often  supposed. 

VI. 

But  how  are  we  to  explain  the  intense  ab- 
horrence with  which  Hobbes  was  regarded  by 
the  believers  in  Divine  Right  ?  Many  causes  of 
this  dislike   may  be  found.    His  philosophy,  his 

^  Majestas  Intemerata  is  a  striking  instance  of  this  feeling. 
The  author  cannot  conceive  that  the  King  has  lost  any  rights 
which  ever  belonged  to  him. 


llobbei 
and  the 
clergy. 


THEORY  OF  SOVEREIGNTY 


249 


alleged  heterodoxy,  his  hatred  of  the  Universities, 
his  contempt  for  Aristotle  (of  whom  Filmer  has  so 
great  an  admiration),  his  unrelieved  Erastianism, 
his  scorn  of  merely  passive  obedience,  would  all  tend 
to  deepen  the  dislike.  But  the  head  and  front  of 
his  offending  is  different. 

In  the  fii-st  place  his  system  of  politics  is  purely 
utilitarian.  It  contains  far  less  of  the  religious 
sanction,  which  men  of  that  day  demanded  for  all 
governments,  than  do  the  writings  of  the  opponents 
of  non-resistance.  His  point  of  view  is  eminently 
modem ;  and  his  thought,  therefore,  for  that  very 
reason  tends  to  be  out  of  relation  to  that  of  the  time 
in  which  he  lived.  It  has  been  shewn  above  that 
in  many  ways  his  connection  with  his  contemporary 
theories  of  politics  is  far  closer  than  was  once  thought. 
Yet  at  bottom  his  system  is  divided  from  all  others 
of  his  time  by  a  far  deeper  gulf  than  that  by 
which  they  were  separated  from  one  another. 
Alone  among  the  men  of  his  time  Hobbes  realized, 
that  politics  are  not  and  cannot  be  a  branch  of 
theology.  The  fact  that  he  passed  to  the  other 
extreme,  and  committed  the  error  of  treating  theo- 
logy, as  though  it  were  a  branch  of  politics,  was 
unlikely  to  render  him  a  more  acceptable  figure ^ 

'  To  Hobbes  religion  was  nothing  but  a  "law  of  the  kingdom," 
enforced  for  the  sake  not  of  truth  but  of  peace,  about  which  there 
must  be  no  controversy.  The  duty  of  the  clergy  is  solely  to 
preach  obedience.  The  Anglican  divines  could  not  be  expected  to 
view  with  favour  a  man  who  wrote  in  this  style.  "We  may  justly 
pronounce  for  the  authors  therefore  of  all  this  spiritual  darkness 
in  reUgion  the  Pope  and  Rouian  clergy,  and  all  those  besides  who 
endeavour  to  settle  in  the  minds  of  men  this  erroneous  doctrine, 


250 


NON-RESISTANCE  AND  THE 


state. 


in  the  eyes  of  those,  who  sought  their  theory  of 
obedience  in  S.  Paul  and  found  the  justification  of 
monarchy  in  the  vision  of  Nebuchadnezzar. 
Theory  of       Yet  there  is  a  still  greater  cause  of  divergence 
compact     between   Hobbes   and  the  other  royalist  writers, 
denies,      jj^g  ^;hgoj.y        orovernment  was  based   upon  the 

believers        .   .  »  _  ^  _ 

in  Divine  original  compact.  This  notion  was,  however  ridicu- 
a«ser«  the  clear  conception  of  the  opponents  of 

organic     Divine  Right  and  lav  at  the  root  of  such  consistency 

character  o  j  j 

of  the  of  theory  as  they  possessed.  There  is,  indeed,  on  the 
Whig  side  some  more  or  less  hesitating  recognition 
of  the  principle  of  utility,  notably  in  the  case  of 

that  the  Church  now  on  earth  is  that  kingdom  of  God  mentioned  in 
the  Old  and  New  Testament"  (Leviathan,  383).  Now  the  belief  of 
all  contemporary  theorists  of  whatever  party  was  the  exact 
converse  of  this  ;  they  looked  to  Scripture  for  a  complete  theory 
of  politics.  The  dominant  thought  of  Bellarmine  and  Suarez  is 
that  Christ  must  have  appointed  for  the  Christian  Church  the 
most  perfect  form  of  government ;  and  that  political  theory  may 
safely  be  founded  thereon.  The  very  first  paragraph  of  the 
De  Romano  Pontifice  is  to  this  effect ;  Suarez  takes  the  same  ground 
as  a  proof  of  the  excellence  of  monarchy,  (De  Legibus,  iii.  4). 
Mariana  is  willing  to  use  the  tenable  opinion  of  the  council  being 
superior  to  the  Pope  in  order  to  prove  the  subjection  of  the  King 
to  the  community  ;  although  he  guards  himself  against  the  retort 
from  the  opposite  and  more  common  view  of  Papal  autocracy  by 
asserting  that  the  Pope's  power  comes  direct  from  God,  while  that 
of  the  King  comes  from  the  people  [De  Rege,  i.  8).  Similarly  it 
has  been  shewn  that  for  most  Anglican  divines  politics  are  founded 
upon  theology ;  e.g.  Sacheverell's  sermons,  especially  "  The  Poll- 
tical  Union,"  which  is  far  abler  than  the  better  known  production, 
are  a  striking  instance  of  the  belief.  "  It  is  impossible  for  it  [govern- 
ment] to  subsist  upon  any  other  bottom  than  that  of  religion." 
Hobbes  would  have  transposed  religion  and  government ;  that  he 
arrived  at  the  same  conclusion  as  other  royalists  is  as  nothing  to 
the  fundamental  difference  of  principle. 


THEORY  OF  SOVEREIGNTY 


251 


Locke,  and  this  connects  them  with  the  thought  of 
the  future  and  with  the  speculations  of  Bentham  and 
Mill.  Yet  the  basis  on  which  rest  all  the  theories 
of  popular  rights  in  the  seventeenth  century  is  not 
utility,  but  the  original  compact.  It  is  against  the 
original  compact  that  the  supporters  of  Divine  Right 
inveigh  most  strongly.  For  it  is  the  expression  of 
a  diametrically  opposite  standpoint  to  that  of  the 
Royalists.  Amidst  whatever  mass  of  sophistry  and 
error,  the  conception  of  the  organic  character  of  the 
state  dominated  the  believers  in  Divine  Right. 
The  theory  of  compact,  whether  held  by  Whigs  or 
Hobbists,  is  the  denial  of  this.  To  them  the  state 
is  an  artificial  creation.  To  Filmer  or  Hickes  or 
Leslie  it  is  a  natural  growth.  In  Locke  or  Sidney 
or  Milton  the  original  compact  limits  all  forms  of 
governments  and  reduces  the  state  to  a  mechanical 
instrument,  that  may  with  ease  be  destroyed  and 
manufactured  afresh.  In  the  view  of  Hobbes  the 
machine  of  state,  when  created,  is  indeed  to  last  for 
all  time,  but  it  has  no  quality  of  life,  no  principle 
of  internal  developement.  According  to  the  Whig 
view  the  sovereign  people  may  repeatedly  upset 
the  constitution  of  the  state,  and  might,  if  they 
were  better  men,  do  without  one  at  all.  The 
state  in  fact  is  a  necessary  evil.  The  popular 
theories  of  the  seventeenth  century  are  a  survival  of 
the  notion  proclaimed  in  its  nakedness  by  Hilde- 
brand,  but  hinted  at  by  Aquinas,  and  more  or  less 
dominant  in  all  the  Papalist  writers,  that  the  state 
is  a  consequence  of  the  fall  existing  for  the  hardness 
of  men's  hearts.    Far  different  from  this  is  the 


252 


NON-RESISTANCE  AND  THE 


conception  of  the  supporters  of  Divine  Right.  Political 
society  is  natural  to  man ;  government  and  therefore 
obedience  are  necessities  of  human  nature.  The 
uncritical  appeals  to  the  Scriptures,  to  the  patriarchal 
theory,  to  past  history  are  all  governed  by  this  one 
luminous  thought,  that  the  state  is  no  mere  artificial 
manufacture,  but  a  natural  organism,  and  that  a 
wise  handling  of  its  problems  can  arise  only  from 
the  recognition  that  it  has  distinct  laws  of  develope- 
ment,  which  may  not  be  transgressed  by  tinkering 
it,  as  a  machine.  The  logical  issue  of  the  popular 
theory  is  to  treat  the  state  as  a  lifeless  creation  of 
the  popular  will  with  no  power  of  developement  and 
with  no  source  of  strength  in  sentiment  or  tradition. 
No  theory  of  government  was  ever  more  untrue  to 
the  facts  of  life  than  is  that  of  Locke,  and  the 
difference  between  him  and  Filmer  in  this  respect  is 
all  in  favour  of  the  latter.  In  Filmer's  theory  there 
is,  indeed,  a  touch  of  unreality,  which  is  not  found 
in  many  of  the  less  famous  supporters  of  Divine 
Right.  But  there  can  be  no  doubt  that  the  method 
of  believers  in  Divine  Right  was  far  less  unhistorical 
than  that  of  their  opponents.  The  contrast  is  ex- 
pounded with  striking  force  of  satire  and  reasoning 
in  the  numerous  writings  of  Leslie.  Even  Filmer's 
theory  is  based  upon  the  notion  that  what  has 
always  existed  must  be  natural  to  man  and  of 
Divine  authority,  and  is  therefore  immutable. 

Further,  it  is  worthy  of  remark,  that  the  sup- 
porters of  Divine  Right  differed  from  their  opponents 
in  being  the  nearer  to  the  truth.  For  both  sides 
agreed  in  teaching  invariable  non-resistance  to  the 


THEORY  OF  SOVEREIGNTY 


253 


ultimate  authority,  and  are  therefore  in  en-or  ac- 
cording to  the  modern  views.  Neither  side  admitted 
the  Divine  Right  of  insurrection,  as  it  is  very 
generally  held  now.  Both  sides  used  uncritical 
methods  and  misinterpreted  Scripture  or  evaded  its 
meaning.  Nor  did  the  supporters  of  the  Divine 
Right,  or  at  least  the  majority  of  them,  contend  that 
monarchy  is  the  only  lawful  form  of  government, 
and  that  all  republican  states  ought  to  set  about 
changing  their  constitution.  Neither  side  possessed 
a  utilitarian  theory  of  politics.  It  is  possible  that 
on  the  popular  side  an  individual  here  and  there 
might  be  found,  who  taught  a  theory  of  utilitarian 
obedience ;  while  on  the  side  of  the  King  some  men 
might  be  found,  who  denied  God's  protection  to  any 
government  save  a  monarchy.  But  in  the  main 
this  was  not  the  case.  Against  those  who  fail  to 
perceive  the  true  nature  of  law  and  sovereignty  the 
royalist  writers  point  out  with  truth  the  necessity 
in  every  state  for  some  supreme  authority  above  the 
laws.  Against  those  who  assert  that  the  state  is 
the  artificial  creation  of  an  impossible  contract  they 
proclaim  the  profound  truth  that  government  is 
natural  and  necessary  to  mankind.  The  Divine 
Right  of  Kings  is  the  expression  of  the  supreme 
truth  of  political  thought,  ^va-eu  av6pu)iro<;  ^wov 
TToXiTiKov.  Men  pride  themselves  on  at  last  realizing 
the  truth  that  the  state  is  organic,  or  hail  with 
enthusiasm  the  attempt  of  Austin  and  other  modem 
writers  on  jurisprudence  to  clear  up  notions  of  law 
and  government.  They  have  then  little  right  to 
charge  with   triviality  those  who  announced  the 


254 


NON-RESISTANCE  AND  THE 


same  truths  in  opposition  to  theories  of  law,  that 
had  ceased  to  represent  facts,  and  to  a  system  of 
politics  only  less  unreal  and  absurd  than  that  of 
Rousseau.  It  is  true  these  notions  found  forms  of 
expression  that  had  relation  to  an  order  of  things 
Burke.  that  has  long  since  passed  away.  But  if  as  against 
Rousseau  prating  of  the  rights  of  man,  of  natural 
equality,  of  popular  sovereignty,  men  still  pay  reverent 
gratitude  for  the  polemic,  in  which  Burke  proclaimed 
the  historical  character  of  constitutional  life,  the 
organic  growth  of  the  state  and  the  value  of  senti- 
ment and  "prejudice,"  what  right  have  they  to  blame 
Filmer  or  Leslie,  who  insist  against  Locke  with  equal 
truth  that  all  men,  so  far  from  being  bom  free  and 
equal,  are  bom  slaves,  that  [government  has  its  roots 
deep  in  the  past  and  that  the  state  has  a  life  which 
may  not  lightly  be  touched  ? 
Divine  Lastly,  the  theory  of  the  Divine  Right  of  Kings 

shews  a  was  the  form  in  which  was  expressed  the  sense 
belief  in    q£  ^j^g  need  of  some  bond  of  moral  sentiment  and 

the  moral 

basis  of  conscience  other  than  the  belief  in  its  utility  to 
the  state.  g^^^g^^Yi  men  to  any  government.  Burke  felt  the 
same  need  and  expressed  it  in  tones  which  yet  ring 
in  men's  ears.  He  knew  that  the  influences  of 
sentiment  and  tradition  are  stronger  than  the  cal- 
culations of  interest  to  bind  a  people's  allegiance  to 
its  govemment,  and  that  no  constitution  can  be 
stable  which  makes  a  merely  utilitarian  appeal  on 
men's  assistance.  He  was  not  ashamed  to  say  that 
the  dead  weight  of  custom,  "prejudice,"  was  the 
weapon  which  all  states  should  have  in  their  hand. 
For  he  felt  that  an  emotional  tie  must  add  strength 


THEORY  OF  SOVEREIGNTY 


255 


to  the  civic  reason  in  order  to  make  it  an  enduring 
support.  Now  the  theory  of  Divine  Right  was  the 
expression  of  the  same  truth  in  forms  suited  to  the 
seventeenth  century.  It  may  be  that  our  debt  of 
gratitude  to  the  men  of  that  age  is  no  less  great 
than  that  which  all  are  willing  to  acknowledge  to 
the  great  thinker  of  the  last  century.  Nor  should 
we  be  chary  of  giving  their  due  to  the  protagonists 
in  a  struggle  of  which  we  are  enjoying  the  fruits, 
merely  because  their  fundamental  principles  won 
ultimate  triumph  only  through  the  defeat  of  the 
practical  maxims  deduced  from  them,  or  because  their 
methods  of  argument  lack  the  persuasive  charm  and 
their  style  is  without  the  majestic  flow,  which  have 
given  to  Edmund  Burke  his  unfading  laurels. 

"It  is  most  true  that  all  available  authority  is 
Mystic  in  its  conditions"  says  Carlyle^  Into  the 
true  nature  of  the  bonds,  which  unite  men  in  govern- 
ment and  subjection,  Filmer  and  Leslie  and  Sache- 
verell  perhaps  had  a  deeper  insight  than  the  modem 
journalist  or  member  of  Parliament.  In  some  form 
or  other  "  loyalty  to  persons  springs  immortal  in  the 
human  breast^"  and  must  always  survive  as  the  basis 
of  society,  and  obedience  for  conscience'  sake  remain 
the  chief  support  of  governments  The  Divine  Right 
of  Kings  is  partly  the  expression  of  truths  concerning 
society  and  the  state  of  deeper  and  more  universal  sig- 
nificance than  the  trivialities  of  modern  party  politics. 

'  French  Revolution,  ii.  2. 

'  Cardinal  Newman,  Letter  to  the  Duke  of  Norfolk  (80). 

*  "  There  can  be  no  firmness  without  law  ;  and  no  laws  can  be 
binding  if  there  be  no  conscience  to  obey  them  ;  penalty  alone  could, 
can  never,  do  it."    Laud,  Sermon  iv.  (Works,  i.  112). 

0 


CHAPTER  X 


CONCLUSION 

True  It  will  have  appeared  from  the  foregoing  investi- 

^zT/JiL  gation  that  the  theory  of  the  Divine  Right  of  Kings 
Right.  was  something  different  in  import  and  value  from 
the  collection  of  purely  ridiculous  propositions  per- 
versely preached  by  a  servile  church,  which  some 
have  elected  to  represent  it.  It  was  able  to 
gain  currency  by  appealing  to  some  of  the  deepest 
instincts  of  human  nature.  It  gathered  up  into 
itself  notions  of  the  sanctity  of  the  medicine  man, 
of  the  priestly  character  of  primitive  royalty',  of  the 
divinity  of  the  Roman  Emperors  and  perhaps  of 
the  sacredness  of  the  tribunician  power.  Yet  the 
doctrine  of  Divine  Right  owes  much  to  the  common 
sentiment  of  Christians  as  to  obedience ;   and  it 

*  That  this  feeling  had  not  died  out  in  the  seventeenth  century 
is  proved  by  the  following  words  put  into  the  mouth  of  Charles ; 
On  their  denying  his  majesty  his  chaplains:  "It  may  be,  I  am 
esteemed  by  my  deniers  Bufficieiit  of  myself  to  discharge  my  duty 
to  God  as  a  priest ;  though  not  to  men  as  a  prince.  Indeed  I 
think  both  offices,  regal  and  sacerdotal,  might  well  become  the 
same  person,  as  anciently  they  were  under  one  name,  and  the 
united  rights  of  primogeniture."  Eikon  Basilike.  This  feeling 
was  quite  common  at  the  time. 


CONCLUSION 


257 


found  its  most  effective  material  in  the  practice  and 
teaching  of  the  Christian  Church  in  early  ages.  The 
sentiment  of  obedience  to  government,  as  of  Divine 
authority,  subsisted  as  a  vague  notion  until  the 
attempt  of  the  Papacy  to  make  use  of  the  notion 
in  its  own  interests,  led  men  to  examine  the  value 
of  current  maxims  on  the  subject  and  to  assert 
the  independent  authority  of  secular  governments, 
in  a  theory  which  is  in  its  essential  meaning  a 
doctrine  of  liberty — the  freedom  of  political  societies 
from  subjection  to  an  ecclesiastical  organization. 

It  is  as  an  anti-clerical  weapon  of  independence  An  anti- 
that  the  theory  had  its  greatest  value  and  fulfilled  theory. 
its  most  noteworthy  function.  In  opposition  to 
the  claims  of  the  Pope  to  sovereignty  by  Divine 
Right,  men  formulated  the  claims  of  the  King  to 
sovereignty  by  a  right  that  is  not  inferior.  Thus 
the  doctrine  is  anti-clerical.  Yet  since  it  was  directed 
against  a  theory  of  clericalism,  it  was  inevitably 
formed  or  supported  in  the  main  by  divines.  And 
the  form  of  the  theory  was  necessary  to  its  success. 
It  would  have  failed  in  its  object,  had  it  attempted 
to  give  to  Parliament  rather  than  to  the  King  the 
sovereignty  which  it  denied  to  the  Pope.  Against 
the  traditional  splendours  of  the  tiara  it  would  have 
been  vain  to  set  up  any  lower  dignity  than  the 
Crovm.  Indeed  no  such  aim  could  have  been  con- 
ceived in  imagination.  It  would  have  been  an 
anachronism.  The  one  country,  in  which  the  resist- 
ance to  the  Papal  yoke  was  of  purely  popular  origin, 
threw  off  allegiance  to  the  Papacy  only  to  fall 
under  the  dominion  of  a  power  equally  ecclesiastical 
F.  17 


258 


CONCLUSION 


forms  the 
necessary 

transition  politics 
betweeri 
mediceval 
and 
modern 
politics. 


in  its  aims  and  more  galling  in  its  incidence.  In 
the  sixteenth  century  it  was  well  if  a  King  had 
the  strength  to  cast  off  the  Papal  yoke,  without 
rivetting  another  clerical  authority  on  the  state. 
Certainly  none  but  a  King  had  the  power. 
The  theory  Again,  we  see  that  the  theory  was  necessary  as 
a  transition  stage  between  mediasval  and  modem 
It  is  a  far  cry  from  the  conception  ex- 
pressed in  the  Holy  Roman  Empire,  that  theology 
is  the  source  of  political  theory,  and  that  the  state 
is  an  aspect  of  the  Kingdom  of  Christ,  to  the  modem 
view  that  politics  and  theology  have  little  or  no 
relation  to  one  another.  Politics  are  frankly  secular 
nowadays.  Even  where  religion  is  invoked  as  a 
sentiment,  theology  is  not  expected  to  solve  the 
problems  of  statesmanship.  Political  theory  has 
ceased  to  be  anything  but  utilitarian,  although  it 
may  be  a  question  how  far  this  change  is  an  improve- 
ment and  whether  it  is  likely  to  be  lasting.  At  any 
rate,  in  some  form  or  other  utilitarianism  governs 
political  thought  at  the  present  day.  But  for  this 
to  be  the  case,  a  long  course  of  developement  and 
conflict  has  been  needful.  Before  political  life  can 
free  itself  from  what  may  be  called  the  theocratic 
stage,  it  must  assert  for  itself  a  coequal  right  to 
exist  with  theology.  It  must  claim  that  politics 
have  a  proper  and  necessary  function  to  perform  in 
the  developement  of  the  human  race,  and  that  there- 
fore their  independent  existence  must  be  as  much  a 
part  of  the  Divine  plan  for  mankind,  as  is  the 
science  of  theology  or  the  organization  of  the  Church. 
That  the  state  is  the  realization  of  a  true  idea,  and 


CONCLUSION 


259 


has  a  necessary  place  in  the  world,  is  the  claim, 
which  was  explicitly  or  implicitly  denied  by  the 
Papalist,  and  only  made  good  through  the  theory  of 
Divine  Right.  For  it  is  only  when  the  claim  is  put 
forward  by  Divine  Right,  that  it  can  have  any 
practical  efficacy  against  a  sovereign  claiming,  as 
God's  vicegerent,  the  overlordship  of  all  kings  and 
princes.  That  secular  politics  are  as  truly  God's 
ordinance  and  that  political  organizations  have  as 
much  claim  to  exist  with  His  approval  as  the  contro- 
versies of  Churchmen  and  the  rules  of  the  Canon 
Law,  is  the  least  that  can  be  demanded  by  all  sup- 
porters of  Divine  Right. 

In  the  Middle  Ages  all  departments  of  thought  The  theory 
were  conceived  as  subordinate  to  theology  in  such  a 
way  that  the  methods  of  theology  fettered  and  forjnation. 
strangled  free  developement  in  science  or  art  or 
literature.  The  Reformation  is  the  assertion  of  the 
claims  of  the  human  spiiit  to  carry  on  independent 
work  in  all  branches  of  enquiry  and  activity,  under 
the  consciousness  that  truth  cannot  contradict  itself 
and  that  the  results  of  every  sort  of  labour  carried 
on  with  appropriate  means  and  for  worthy  objects 
will  tend  to  unity  at  the  last. 

Now  in  politics  the  rise  and  prevalence  of  the 
theory  of  the  Divine  Right  of  Kings  is  the  same 
phenomenon.  Theology  had  attempted  unreasonably 
to  dominate  politics,  and  had  committed  men  to  an 
unphilosophical  basis  and  an  uncritical  method. 

The  only  way  to  escape  from  the  fetters  imposed  Its  form 
by  traditional  methods,  was  to  assert  from  the  old  '^^'^^^^"-^V- 
standpoint  of  a  Scriptural  basis  and  to  argue  by  the 

17—2 


260 


CONCLUSION 


accustomed  fashion  of  Biblical  quotations,  that  poli- 
tics must  be  freed  from  theology  and  that  the  Church 
must  give  up  all  attempts  to  control  the  State.  The 
work  of  the  Reformation  was  to  set  men  free  in  all 
departments  of  thought  and  enquiry  fi-om  subjection 
to  a  single  method  and  a  single  subject.  In  the  case 
of  politics  the  achievement  of  this  result  was  possi- 
ble only  through  claiming  at  first  theological  sanc- 
tion for  the  non-theological  view  of  politics.  Only 
when  the  result  is  achieved  will  politics  be  free  to 
develope  theories  which  shall  be  purely  philosophical 
or  historical.  Not  till  then  will  it  cease  to  be  needful 
to  find  Scriptural  authority  for  political  theory,  or 
Biblical  counterparts  to  the  ideals  of  government. 
Politics  were  able  to  enter  upon  their  modem  stage, 
only  because  the  theory  of  Divine  Right  having 
done  its  work  had  emancipated  them  from  mediaeval 
fetters  and  had  in  so  doing  become  obsolete  itself 
Political  Again,  it  has  appeared  that  the  anarchy  of  the 
the  theory.  Middle  Ages  developed  in  men's  minds  a  sense  of 
the  need  of  law  and  of  the  duty  of  obedience.  Further, 
Obedience  the  Reformation  and  other  causes  had  contributed 
to  develope  so  highly  the  legislative  activity  of  the 
state,  and  the  checks  imposed  upon  its  action  by 
custom  or  the  Pope  or  feudalism  had  been  so 
generally  removed,  that  a  theory  of  sovereignty  had 
become  the  natural  expression  of  facts,  and  the  sense 
arose,  that  law  has  its  authority  as  being  a  command 
of  the  sovereign.  The  perception  or  the  denial  of 
these  facts  has  been  shewn  to  be  the  main  point  of 
political  controversy  between  the  believers  in  royal 
and  in  popular  rights. 


CONCLUSION 


261 


The  other  chief  source  of  difference  is  that  be-  The 
tween  an  artificial  and  a  historical  conception  of  the  ^organism. 
state.  The  believers  in  Divine  Right  taught  that  the 
state  is  a  living  organism  and  has  a  characteristic 
habit  of  gi'owth,  which  must  be  investigated  and  ob- 
served. Their  opponents  believed  the  state  to  be  a 
mechanical  contrivance,  which  may  be  taken  to 
pieces  and  manufactured  afi-esh  by  every  Abb6 
Siey^s  who  arises. 

Moreover,  it  has  appeared  that  the  doctrine  of  The  theory 
Divine  Right  effected  its  object.  The  political 
claims  of  the  Papacy  have  disappeared.  Whether  or 
no  Rome  has  technically  receded  from  her  preten- 
sions, the  temporal  supremacy  is  not  now  an  object 
for  which  the  most  ultramontane  Romanist  will 
contend.  The  claims  still  put  forward  by  the 
Vatican  to  the  temporal  power  in  no  way  involve  a 
claim  to  political  supremacy  over  all  princes.  The 
doctrines  of  the  deposing  power  and  the  plenitudo 
potestatis  have  vanished  rather  than  been  disproved. 
It  would  not  be  within  the  dreams  of  a  modern 
Papalist  to  assert  them,  nor  would  there  be  the 
smallest  likelihood  of  any  Roman  Catholic  nation 
admitting  them,  if  they  were  asserted.  The  claim 
to  infallibility  has  been  long  since  explained  as  in 
no  way  involving  a  weakening  of  civil  allegiance  ^ 


1  See  Cardinal  Newman's  Letter  to  the  Duke  of  Norfolk  ;  also 
Life  of  Cardinal  Manning,  i.  399. 

Perhaps  the  Pope's  complaint,  that  Brandenburg  was  erected 
into  a  kingdom  without  his  consent  is  the  last  instance  of  any 
attempt  to  assert  the  temporal  supremacy,  unless  the  coronation  of 
Napoleon  be  regarded  in  that  light.  (Lamberty,  Memoires,  i.  383.) 


262 


CONCLUSION 


Further,  practical  influences,  among  which  the  Union 
with  Scotland  is  probably  not  the  least  important, 
have  contributed  to  reduce  to  a  minimum  the  claims 
of  the  other  ecclesiastical  body,  which  disputed  with 
the  Roman  Church  for  the  palm  of  imposing  upon 
the  state  the  more  stifling  touch.  The  omnipotence 
of  civil  governments  all  the  world  over  is  a  fact 
no  longer  disputed — with  one  limitation.  From  the 
claim  by  Divine  Right  put  forward  by  the  Church 
to  a  freedom  which  meant  supremacy,  has  gi'own  the 
doctrine  of  toleration,  by  which  alone,  as  a  practical 
limit  upon  state  action,  religious  freedom  can  be 
secured  without  clerical  supremacy. 
The  theory  That  the  Divine  Right  of  Kings  was  not  merely 
lo'the^^Re-  useful,  but  necessary  to  the  political  side  of  the 
formation.  Reformation,  appears  to  be  clearly  proved  by  the 
evidence.  Confirmation  of  this  is  afforded  by  the 
fact  that  the  theoretical  presentment  of  antagonism 
to  the  Papal  claims  had  taken  in  earlier  ages  a  form, 
which  differed  but  little  from  the  theories  of  the 
sixteenth  and  seventeenth  centuries.  With  the 
Restoration  the  last  chance  of  Presbytei'ianisra 
becoming  dominant  in  England  disappeared.  The 
Revolution  finally  removed  all  danger  from  the  side 
of  Rome.  Only  then  did  the  theory  of  the  Divine 
Right  of  Kings  cease  to  be  useful.  As  a  matter 
of  fact,  from  a  doctrine  with  a  practical  aim  it 
begins  at  this  time  to  pass  into  a  romantic  belief 
enshrining  a  sentimental  regi'et  for  the  past,  and 
has  perhaps  a  value  in  literature  which  it  has  lost 
in  theology  and  politics.  Perhaps  we  may  see  in 
Burke  the  survival  in  substance  and  transformation 


CONCLUSION 


263 


in  form  of  the  fundamental  principle,  which  gave  to 
the  theory  of  Divine  Right  its  political  value.  The 
raison  d'etre  for  the  rival  theories  was  removed  by 
the  statutes  of  Toleration  and  Catholic  Relief. 
On  the  other  hand,  as  soon  as  the  notion  of  the 
original  compact  had  done  its  work  in  England 
by  giving  men  what  they  regard  as  an  intellectual 
justification  for  the  Revolution,  it  too  began  to 
disappear  and  to  give  place  to  the  purely  utilitarian 
theory  of  politics,  which  became  dominant  through 
the  influence  of  Bentham. 

The  theory  of  Divine  Right  did  not  lose  its  The  belief 
popularity  because  it  was  absurd,  but  because  its  'fl^^'^s'^no^ 
work  was  done.    There  were  iust  as  good  reasons  for  longer 

useful 

disbelieving  in  its  validity  in  1598  or  1660  as  there 
were  at  the  Revolution.  Certainly  some  writers  were 
well  acquainted  with  them  even  at  the  earlier  date, 
a  fact  proved  by  such  a  treatise  as  that  of  Parsons. 
The  Divine  Right  of  Kings  ceased  to  have  practical 
importance,  not  because  its  doctiines  were  untrue, 
but  because  its  teaching  had  become  unnecessary. 
The  transition  stage  had  passed.  The  independence 
of  the  state  had  been  attained.  Politics  having 
made  good  their  claim  to  be  a  part  of  the  natural 
order  had  no  longer  need  of  a  theological  justifi- 
cation. 

Again,  if  the  theory  be  regarded  on  its  purely  Doctrine 
political  side,  the  conceptions  which  it  enshrined  ^^^^^^^^ 
are  become  part  of  our  common  heritage.    To  the  English 
sense  of  the  organic  character  of  the  state  and  of  the 
duty  of  obedience  are  due  the  existence  of  "law- 
abiding  citizens"  to-day  and  that  dislike  of  all  violent 


264 


CONCLUSION 


breaks  with  the  past,  which  has  ever  been  the 
peculiar  glory  of  England, 

"Where  freedom  slowly  broadens  down 
From  precedent  to  precedent." 

It  was  due  to  this  doctrine  that  the  English 
Revolution  was  the  most  peaceful  in  history  and 
that  English  institutions  have  been  developed  with 
scarcely  a  breach  in  continuity.  To  modern  ears  the 
'  abdication '  of  James  II.  must  ever  seem  a  fiction 
only  the  more  dishonest  that  it  was  transparent. 
Yet  the  phrase  was  a  pledge,  that  the  old  laws  and 
customs  of  the  realm  should  remain,  and  that  no 
cataclysms  should  disturb  the  orderly  developement 
of  the  national  life.  The  phrase  was  false,  but  the 
sentiment  which  it  expressed  was  profoundly  true. 
Its  effect  Nor  again  has  the  doctrine  of  non-resistance  been 
b^neficioL  anything  but  salutary  in  its  results.  It  has,  indeed, 
been  superseded  by  a  theory  of  utilitarian  obedience, 
which,  although  it  may  be  true,  is  likely  to  be  fraught 
with  greater  dangers  than  could  have  attended  the 
firmest  faith  in  passive  obedience.  It  is  easy  for 
modern  politicians  to  regard  the  inculcation  of 
invariable  non-resistance  as  mere  nonsense.  Yet 
most  sober  thinkers  would  admit  that  only  in  the 
extremest  cases  can  resistance  be  justified.  It  may 
be  that  obedience  is  owed  to  the  law  on  account 
of  its  utility,  but  no  one  will  make  every  disutility 
in  the  law  a  ground  for  disobedience.  It  is  not 
doubtful  that  a  sense  of  the  duty  of  obedience  must 
be  widespread,  if  stability  is  to  be  secured  for  the 
state.  We  are  willing  enough  to  admit  that  "force 
is  no  remedy,"  and  that  in  general  a  certain  senti- 


CONCLUSION 


265 


ment  of  loyalty  is  needful  to  the  well-being  and 
security  of  all  governments.  On  what  gi-ounds  then 
can  we  blauie  those  who  found  expression  for  iden- 
tically the  same  views  in  the  maxim  that  men  must 
obey  not  only  for  wrath,  but  for  conscience'  sake  ?  A 
modem  thinker  has  declared  that  laws  and  govern- 
ments need  some  other  sanction  than  that  of  military 
force.  Those  who  endorse  the  aphorism  "You  can 
do  anything  with  bayonets  except  sit  on  them  "  can 
have  little  reason  for  blaming  Laud  when  he  declares 
"There  can  be  no  firmness  without  law;  and  no  laws 
can  be  binding  if  there  be  no  conscience  to  obey 
them;  penalty  alone  could  never,  can  never  do  it'." 
That  government  can  worthily  perform  its  function 
only  when  obedience  is  enshrined  in  the  hearts  of  the 
governed,  that  laws  are  vain  without  loyalty,  was  the 
truth  for  which  the  men  of  the  seventeenth  century 
were  contending,  when  they  asserted  that  all  resist- 
ance was  damnable.  That  government  of  any  kind 
was  better  than  anarchy,  they  were  well  assured. 
T3T:anny  was  in  their  eyes  a  more  supportable  con- 
dition than  disorder.  But  whether  or  no  it  can  be 
maintained  that  no  caprices  of  autocracy  and  no 
oppression  of  democracy  can  make  resistance  to  a 
King  a  right  or  defiance  of  Parliament  (or  the  County 
Council)  a  duty,  all  will  agree  that  the  widespread 
prevalence  of  a  law-abiding  sentiment  is  essential  to 
the  stability  of  the  state.  It  is  well  that  most  men 
should  regard  resistance  to  laws,  however  unjust,  as 
practically  prohibited  by  the  moral  law.  If  there  be 
"  cases  of  resistance,"  they  are  best  ignored. 

'  Laud,  Servw7is  (Works,  i.  112). 


266 


CONCLUSION 


Dangers  of      Now  it  is  hard  to  imagine  a  more  effectual 

utilitarian       ,  i     i     n  •         i  •       •         ^        •      i  i 

theory.  method  or  propagatmg  this  view  than  is  the  theory 
of  Divine  Right.  Nor  is  it  at  all  clear  that  the 
widespread  popular  acceptance  of  a  purely  utilitarian 
basis  for  obedience  may  not  lead  to  great  dangers  in 
the  future.  Englishmen  have  cause  for  gratulation, 
that,  in  a  time  when  the  tendency  is  to  loosen  the 
bonds  of  allegiance  and  to  proclaim  (generally  out  of 
season)  the  morality  of  insurrection,  there  should  still 
exist  in  the  minds  of  the  great  majority  of  their 
countrymen  a  deep  sense  of  the  majesty  of  law  and 
of  the  duty  of  obedience.  This  sense  is  the  priceless 
legacy  bequeathed  to  our  own  day  by  the  believers 
in  the  Divine  Right  of  Kings. 


AARON'S  ROD  BLOSSOMING 

OE 

JUS  DIVINUM  IN  1646 

Had  fortune  placed  you  with  a  listening  ear  in 
the  parts  of  Westminster  towards  the  close  of  the 
year  of  gi-ace  1646,  and  you  had  encountered  some 
Parliament  man  at  discourse  with  a  Divine  of  the 
Assembly,  ten  chances  to  one  you  would  have  heard 
from  them  high  language  about  the  Jus  Divinum. 
But  what  did  this  jus  divinum  denote  ?  A  modern 
would  surely  reply,  the  Divine  Right  of  Kings.  But 
though  that  answer  might  be  right,  it  would  most 
probably  be  wrong.  For  it  is  only  not  certain,  that 
the  topic  of  their  debate  would  have  been  the  Divine 
Right  of  Ruling  Elders,  or  some  other  part  of  the 
Presbyterial  discipline,  as  against  those  who  would 
\  allow  it  merely  on  gi-ounds  of  expediency ;  or  would 

deny  the  organic  connections  of  the  whole  corporate 
system.  As  Robert  Baillie  complained  a  little  earlier, 
"  All  of  them  were  ever  ready  to  admit  Elders  in 
a  prudentiall  way,  but  this  seemed  to  us  a  most 
dangerous  and  unhappy  way  and  therefore  was 
peremptorily  rejected.  We  trust  to  carie  at  last 
with  the  contentment  of  sundrie  once  opposite,  and 
silence  of  all,  their  divyne  and  scripturall  institution. 
This  is  a  point  of  high  consequence ;  and  upon  no 
other  we  expect  so  much  difficulty,  except  alone  on 


268 


JUS  DIVINUM  IN  1646 


Independencie ;  wherewith  we  purpose  not  to  medle 
in  haste,  till  it  please  God  to  advance  our  army, 
which  we  expect  will  much  assist  our  arguments \" 
This  was  written  at  the  end  of  1643.  But  it  was  in 
1646  that  the  issue  of  the  Solemn  League  and 
Covenant  came  near  to  realization.  Unfortunately 
for  its  upholders,  it  was  the  '  new  model '  that  won 
the  successes  rather  than  the  Scots'  Army,  called  in  by 
Pym.  At  the  time  when  the  fortunes  of  Parliament 
were  at  their  lowest  Pym  had  negotiated  an  alliance 
with  the  Scots,  and  the  latter,  who  were  as  Baillie 
said  for  a  '  religious  covenant,'  bound  the  English  by 
the  terms  of  the  Solemn  League  and  Covenant  to 
establishing  uniformity  in  religion  and  Church  govern- 
ment in  the  three  kingdoms;  and  the  reformation 
of  religion  in  England  and  Ireland  in  doctrine,  worship, 
discipline  and  government  according  to  the  word  of 
God^  and  the  example  of  the  best  reformed  Churches. 
Thus  the  Scots  had  grounds,  so  far  as  treaties  are 
binding,  to  look  for  the  establishment  of  the  full 
Presbyterian  system  in  this  country.  Nominally  they 
did  secure  this  by  the  ordinances  passed  from  1645-8, 
which  set  up  the  Directory  of  Public  Worship,  pro- 
hibited the  Prayer-Book,  and  ordered  the  erection  of 
the  whole  system  of  courts — though  always  under 
Parliamentary  control.  So  far  as  the  extirpation  of 
Prelacy  and  the  Book  of  Common  Prayer,  there  was 
now  no  real  difficulty  on  the  Parliament  side.  But  as 

1  Baillie's  Letters,  n.  111. 

2  By  this  qualification  inserted  by  Vane,  he  was  held  to  have 
tricked  the  Scots  and  to  have  secured  England  against  the  absolute 
adoption  of  the  Presbyterian  model. 


JUS  DIVINUM  IN  1646 


269 


regards  strict  Presbyterianism  the  situation  was  quite 
different.  Scotland  was  a  foreign  country  and  not  all 
even  on  the  Puritan  side,  who  were  opposed  by  the 
settlement  'by  law  established,'  had  a  mind  to  see 
religion  entirely  dictated  by  an  external  power,  with 
less  right  on  its  side  than  ever  had  the  Papacy. 
Besides  this,  there  was  in  Parliament  a  very  strong 
lay  element.  Men  like  Selden,  a  convinced  Erastian, 
were  resolved  not  to  subject  the  individual  to  any 
ecclesiastical  authority  without  appeal.  It  was 
alleged  that  the  Presbyterian  system  involved  an 
inroad  on  the  civil  authority  and  was  a  menace  to 
the  natural  liberty  of  the  state.  Besides  this,  there 
was  the  great  fact  of  Independency.  The  army  which 
was  '  assisting  the  arguments '  of  the  Divines  was 
that  of  Fairfax  and  Cromwell.  Between  Indepen- 
dents and  Presbyterians  lay  a  gulf  in  theory  wider 
than  that  between  Presbyterianism  and  Episcopacy. 
The  congregational  theory,  so  abhorrent  to  the 
strict  Presbyterians,  asserted  a  doctrine  of  popular 
sovereignty.  The  whole  body  of  the  Christian  people 
is  in  their  view  the  subject  of  Christ's  commission, 
while  the  Presbyterian  doctrine  was  no  less  aristocratic 
than  episcopacy ;  that  is,  it  asserted,  that  the  whole 
power  of  government  was  in  the  hands  of  the  officers, 
although  some  of  these  officers,  the  elders,  were  lay- 
men. In  the  phrase  of  a  later  day  the  people  have 
nothing  to  do  with  Church  laws  except  to  obey  them, 
as  indeed  many  from  Pope  to  clericalist  might  say 
to-day.  Again,  Presbyterianism  was  a  definite  belief 
in  an  organic  kingdom  of  the  Church,  with  a  hierarchy 
of  courts,  parochial,  classical,  synodal. 


270 


JUS  DIVINUM  IN  1646 


"  This  is  warranted  not  only  by  God's  Positive 
Law,  but  even  by  Nature's  Law.  The  Church  is 
a  company  of  people,  who  are  not  out-lawed  by 
Nature.  The  visible  Church  being  an  Ecclesiastical 
Polity,  and  the  perfection  of  all  polities ;  doth  com- 
prehend in  it  whatsoever  is  excellent  in  all  other 
bodies.  The  Church  must  resemble  the  Common- 
wealth's government  in  things  common  to  both  and 
which  have  the  same  use  in  both.  The  Law  of 
Nature  directs  unto  diversities  of  Courts  in  the 
Commonwealth  and  the  gi-eater  to  have  authority 
over  the  lesser."  But  Independency  denied  this. 
It  declared  each  particular  congregation  to  be  an 
entire  Church.  Inside  this  limit  it  would  admit  the 
jus  divinum  of  ruling  elders  and  excommunication. 
But  of  the  subjection  of  one  Church  to  a  group  it 
knew  nothing.  Independency  did  not  assert,  as 
some  suppose,  the  liberty  of  the  individual ;  but  it 
claimed  the  sovereignty  for  each  particular  Church ; 
and  it  included  not  merely  the  officers,  but  the 
whole  body  of  members,  as  bearers  of  the  power. 
It  might  claim  similar  freedom  from  the  secular 
power ;  but  it  could  not  with  its  view  of  the  rights 
of  each  congregation  lay  claim  to  more  than  tolera- 
tion. Anyhow,  it  was  from  their  disagreement 
with  the  decisions  of  the  Assembly,  that  some 
ministers  were  first  called  Dissenters,  a  term  which 
has  a  different  connotation  from  the  older  Non- 
Conformist.  As  Baillie  complains :  "  The  Indepen- 
dents here  finding  they  have  not  the  magistrate'  so 

'  The  magistrate  here  as  in  all  the  seventeenth  century  means 
the  supreme  civil  authority. 


JUS  DIVINUM  IN  1646 


271 


obsequious  as  in  New  England  turn  their  pens  to 
take  from  the  magistrate  all  power  of  taking  any 
coercive  order  with  the  vilest  heretics." 

Ultimately,  although  the  Presbyterian  system  was 
set  up  by  the  authority  of  Parliament,  it  was  only  with 
such  allowance  of  appeal  to  the  civil  power,  as  was 
highly  distasteful  to  the  true  blue  Presbyterian. 

Moreover  the  dislike  of  Englishmen  to  '  the  holy 
discipline '  prevented  the  system  working  to  any 
extent  even  in  the  Commonwealth.  With  the  Pro- 
tectorate Independency  came  to  its  own ;  and  the 
watchword  of  Cromwell  was  universal  toleration,  ex- 
cept of  course  for  Popery  and  prelacy.  This  liberty 
with  its  exceptions  was  laid  down  by  him  as  'a  funda- 
mental '  and  was  enshrined  in  the  Instrument  of 
Government  and  the  Humble  Petition  and  Advice. 

Both  in  detail  and  in  principle  this  controversy 
is  of  high  interest.  It  involves  nearly  all  the  topics 
which  became  important  in  the  discussion  of  Divine 
Right.  Even  though  it  may  seem  to  the  student  of 
political  doctrines  predominantly  theological,  enquiry 
will  show  this  to  be  an  error.  So  I  must  ask  your 
forbearance,  if  the  relevancy  of  some  of  this  matter 
is  at  first  sight  a  little  doubtful. 

Let  me  read  the  title-pages  of  one  or  two  of  the 
books,  rich  and  rare,  like  so  many  title-pages  of  that 
golden  century.  I  will  take  three,  the  Jus  Divinum 
of  some  London  ministers,  the  Divine  Right  of 
Samuel  Rutherford,  and  Aaron's  Rod  Blossoming 
of  George  Gillespie : 

"Jus  Divinum  Regiminis  Ecclesiastici  Or  The 
Divine  Right  of  Church-Government  Asserted  & 


272 


JUS  DIVINUM  IN  1646 


evidenced  by  the  holy  Scriptures  According  to  the 
Light  whereof  (besides  many  particulars  mentioned 
after  the  Preface) 

1.  The  nature  of  a  Divine  Right  is  delineated 

2.  The  Church  government  which  is  of  Divine 
Right  is  described 

3.  The  Description  in  the  severall  branches  of 
it  is  explicated  &  confirmed 

4.  The  Divine  Right  of  Ecclesiastical  Censures, 
Officers,  &  Ruling  Assemblies  is  manifested. 

In  all  which  it  is  apparent,  That  The  Presbyterial 
Government,  by  Preaching  &  Ruling  Presbyters, 
in  Congregationall,  Classicall,  &  Synodall  Assemblies 
may  lay  the  truest  claime  to  a  Divine  Right,  ac- 
cording to  the  Scriptures. 

By  sundry  Ministers  of  Christ  in  the  City  of 
London." 

Here  is  another : — "  The  Divine  Right  of  Church 
Government  &  Excommunication  or  A  Peaceable 
dispute  for  the  perfection  of  the  holy  Scripture  in 
point  of  Ceremonies  &  Church -Government,  in  which 
The  removal  of  the  Service-Book  is  justified,  The  six 
Books  of  Thos:  Erastus  against  Excommunication 
are  briefly  examined,  with  a  Vindication  of  that 
eminent  Divine  Theod:  Beza  against  the  Aspersions 
of  Erastus,  the  Arguments  of  M""  William  Prjm, 
Rich:  Hooker,  D""  Morton,  D''  Jackson,  D""  John 
Forbes,  &  the  Doctors  of  Aberdeen ;  touching  Will- 
Worship,  Ceremonies,  Imagery,  Idolatry,  Things 
Indifferent,  An  Ambulatory  Government;  the  due 
&  just  Power  of  the  Magistrate  in  matters  of 
Religion,  &  the  Arguments  of  M''  Pryn  in  so  far 


JUS  DIVINUM  IN  1646 


273 


as  they  side  with  Erastus  are  modestly  discussed. 
To  which  is  added  A  brief  Tractate  of  scandal,  with 
an  Answer  to  the  New  Doctrine  of  the  Doctors  of 
Aberdeen  touching  Scandal 

By  Samuel  Rutherford."  And  once  again : — 
"Aaron's  Rod  Blossoming  or  The  Divine  Ordinance 
of  Church-Govemment  Vindicated,  So  as  the  present 
Erastian  Controversie  concerning  the  distinction  of 
Civill  &  Ecclesiasticall  Government,  Excomunication, 
&  Suspension,  is  fully  debated  &  discussed,  from  the 
Holy  Scriptures,  from  the  Jewish  and  Christian 
Antiquities,  from  the  consent  of  latter  Writers,  from 
the  true  nature  &  rights  of  Magistracy,  &  from  the 
groundlessness  of  the  chiefe  Objections  made  against 
the  Presbyteriall  Government  in  point  of  a  domi- 
neering arbitrary  unlimited  power. 

By  George  Gillespie,  Minister  at  Edinburgh 
For  unto  us  a  child  is  born,  unto  us  a  son  is 
given  &  the  government  shall  be  upon  his  shoulders 
Isaiah  9.  6 

Let  the  Elders  that  rule  well  be  counted  worthy 
of  double  honour 

And  the  spirits  of  the  Prophets  are  subject  to  the 
Prophets  for  God  is  not  the  author  of  confusion,  but 
of  peace 

August. :  Lib  contra  Donatistos  post  collationem 
cap  4 

Ne  forte  aut  indisciplinata  patientia  foveat  ini- 
quitatem,  aut  impatiens  disciplina  dissipet  unitatem 
Published  by  authority." 

Now  let  me  cite  an  extract  from  a  protagonist  on 
the  other  side.    Mr  Coleman  of  Norwich  preached 
F.  18 


274 


JUS  DIVINUM  IN  1646 


before  the  House  of  Commons  a  sermon  at  its 
monthly  fast  entitled  '  Hopes  deferred  and  dashed,' 
which  was  the  subject  of  much  criticism  and  became 
a  main  ground  of  controversy.  Passages  in  it  afford 
good  evidence  both  of  his  own  views  and  those  which 
he  was  opposing.  Take,  for  instance,  the  following : 
"  I  could  never  see  how  two  coordinate  governments 
exempt  from  superiority  and  inferiority  can  be  in 
one  state,  and  in  scripture  no  such  thing  is  found, 
that  I  know  of"  He  descants  on  the  exorbitant 
pretensions  of  the  ecclesiastical  power  over  the  civil, 
as  shewn  by  the  claims  of  Paul  V  in  his  controversy 
with  the  Venetian  republic,  and  argues  that  a  like 
danger  rests  in  the  Presbyterian  claim.  "  This  you 
will  say  was  too  high,  but  who  shall  hinder  it,  if  Jus 
Divinum  be  the  weight  that  sets  it  going."  He 
goes  on  to  assert  the  claim  of  all  true  Erastians 
in  any  age,  that  the  civil  magistrate  is  a  governor 
in  the  Church,  Church  and  State  being  assumed  as 
aspects  of  one  society. 

"A  Christian  magistrate  as  a  Christian  magistrate 
is  a  governor  in  the  Church ;  all  magistrates,  it  is 
true,  are  not  Christians,  but  that  is  their  fault ;  all 
should  be  and  when  they  are,  they  are  to  manage 
their  office  under  and  for  Christ.  Christ  hath 
placed  governments  in  his  Church ;  of  other 
governments  besides  Magistracy,  I  find  no  insti- 
tution, of  them  I  do  in  Romans  xiii.  I  find  all 
government  given  to  Christ,  and  to  Christ  as 
mediator.  And  Christ  as  head  of  these  given  to 
the  Church.  To  rob  the  Kingdom  of  Christ  of 
the  magistrate  and  his  governing  power  I  cannot 


JUS  DIVINUM  IN  1646 


275 


excuse,  no,  not  from  a  kind  of  sacrilege,  if  the 
magistrate  be  his'." 

Another  writer  asks,  "  Why  should  a  Common- 
wealth be  denied  the  appellation  and  privilege  of  a 
Church  ? " 

In  Jus  Divinum  the  same  view  is  stated  from 
the  standpoint  of  an  opponent.  "  That  grosse  absur- 
dities would  follow,  should  not  these  two  Societies, 
viz:  Church  and  Commonwealth  be  acknowledged  to 
be  really  and  essentially  distinct  from  one  another. 
Then  the  Commonwealth  as  the  Commonwealth  is 
the  Church,  and  the  Church  as  the  Church  is 
the  Commonwealth.  Then  Ecclesia  and  Repub- 
lica  are  termini  convertibiles.  Then  all  that  are 
members  of  the  Commonwealth  eo  nomine  become 
members  of  the  Church.  Then  the  Common- 
wealth being  formally  the  same  with  the  Church  is 
as  Commonwealth  the  mystical  body  of  Christ.  Then 
the  officei's  of  the  Church  are  the  officers  of  the  Com- 
monwealth, the  power  of  the  Keyes  gives  them  right 
to  the  Civil  Sword,  and  consequently  the  Ministers 
of  the  Gospel,  as  Ministers  are  Justices  of  the  Peace, 
Judges,  Parliament  men,  all  of  which  how  absurd 
Let  the  world  judged"  It  was  to  this  claim  to  the 
identification  of  Church  and  Commonwealth  that 
Presbyterianism  was  essentially  opposed. 

William  Hussey  at  the  close  of  his  Plea  for 
Christian  Magistracy  puts  the  Erastian  case.  "  Let 
these  be  the  questions  : 

1.    Whether  Christ  gave  any  more  government 

1  Hopes  Deferred  and  Daslied,  pp.  26,  27. 
^  Jus  Divinum,  83. 

18—2 


276 


JUS  DIVINUM  IN  1646 


to  Ministers  than  is  contained  in  preaching  and 
baptizing  ?  Neg. 

2.  Whether  he  gave  any  government  to  the  Church 
at  all  ?  Neg. 

3.  Whether  a  Commonwealth  professing  the 
Gospel  be  a  visible  Church  ?  Ass. 

4.  Whether  any  member  of  such  a  Common- 
wealth rightly  ordered  where  he  hath  his  consent  to 
making  Civill  Laws  may  hold  himselfe  free  from  such 
Laws  in  matters  of  conscience  ?  Neg. 

5.  Whether  the  people  have  any  power  to  choose 
their  ministers  ?  Neg." 

Reflection  on  this  controversy  will  help  us  to 
understand  the  atmosphere  in  which  men  conducted 
the  discussion  of  the  Divine  Right  of  Kings.  That 
doctrine  is  not  a  monster  dropped  from  the  blue  to 
assist  the  advocates  of  tjnranny.  Its  shape  bears 
witness  to  the  temper  in  which  all  these  topics  were 
argued.  That  was  the  great  age  of  Jus  Divinum. 
We  must  set  the  Divine  Right  of  Kings  beside  the 
Divine  Right  of  Ruling  Elders,  of  the  Papal  autocracy, 
of  episcopal  orders,  and  even  of  the  common  man. 
It  is  the  notion  of  some  inherent  claim  above  all  in- 
stitutional and  civil  arrangements.  In  the  debate  at 
Putney  in  1647  Colonel  Rainborow,  the  mouthpiece 
of  the  Levellers,  explained  in  words  which  even  now 
might  teach  us  a  little.  "  I  think  that  the  poorest 
hee  that  is  in  England  hath  a  life  to  live,  as  the 
gi-eatest  he ;  and  therefore,  truly,  Sir,  I  think  its 
cleare  that  every  man  that  is  to  live  under  a  Govern- 
ment ought  firstly  by  his  own  consent  to  put  himself 
under  that  Government,  and  I  do  think,  that  the 


JUS  DIVINUM  IN  1646 


277 


poorest  man  in  England  is  not  at  all  bound  in  a  strict 
sense  to  that  he  hath  not  had  a  voice  to  putt  himself 
under."  Here  he  asserts  as  before  all  laws  and  apart 
from  any  rights  of  property,  the  Divine  or  natural 
and  inherent  right  of  man  as  man.  Naturally  he 
was  opposed  by  the  whole  weight  of  those  who  stood 
for  that  which  was  to  be  the  ruling  principle  for 
centuries,  the  Divine  Right  not  of  Kings,  but  of 
the  propertied  classes ;  and  Ireton  at  once  replied : 
"  Give  me  leave  to  tell  you  that  if  you  make  this 
the  rule,  I  think  you  must  fly  for  refuge  to  an  Ab- 
solute Natural  Right  and  you  must  deny  all  Civil 
Right ;  I  am  sure  it  will  come  to  that  in  the  con- 
sequence \" 

Gillespie  puts  the  same  in  his  preface :  "  To 
the  candid  reader.  This  truth  that  Jesus  Xt  is  a 
king  and  hath-  a  kingdom  and  government  in  his 
Church  distinct  from  the  kingdoms  of  this  world  and 
from  the  civil  government  hath  this  commendation 
and  Character  above  all  other  truthes  that  Xt 
himself  suffered  to  the  death  for  it,  and  sealed  it 
with  his  blood ;  for  it  may  be  observed  from  the 
story  of  his  passion,  this  was  the  only  point  of  his 
accusation  that  was  confessed  and  avouched  by  him- 
self, was  most  aggravated,  prosecuted  and  driven 
home  by  the  Jews,  was  prevalent  with  Pilate  as  the 
cause  for  condemning  him  to  die,  and  was  mentioned 
also  in  the  superscription  upon  his  Cross. . . .  This 
was  the  thing  which  Herod  and  Pilate  and  many 
other  princes,  potentates  and  states  do  look  upon 


1  Tlie  Clarke  Papers,  i.  301. 


278 


JUS  DIVINUM  IN  1646 


with  so  much  fear  and  jealousy  as  another  govern- 
ment coordinate  with  the  ci\al." 

Or  as  Rutherford  says:  "If  the  Church  be  a 
PERFECT,  visible,  society,  house,  city  and  kingdom, 
Jesus  Christ  in  esse  et  operari;  then  the  Magistrate 
when  he  coineth  to  be  Christian,  to  help  and  nourish 
the  Church,  as  a  father  he  cannot  take  away  and  pull 
the  keys  out  of  the  hands  of  the  stewards." 

Secondly,  it  is  well  to  regard  a  little  the  Latin 
form  of  the  phrase.  Better  than  the  English  'right,' 
the  word  'Jus'  brings  before  us  the  predominantly 
legalist  atmosphere,  in  which  politics  were  debated 
for  so  long.  Partly  this  is  due  to  the  influence 
of  the  Roman  civil  law,  and  to  the  fact  that  the 
classical  maxims  alike  of  popular  and  absolutist 
theories  were  draAvn  from  thence,  such  as  '  quod 
omnes  tangit  ah  omnibus  approbetur,'  '  q  uod  principi 
placuit  legis  habet  vigorem,'  and  so  forth.  Feudalism 
also  had  tended  to  the  treating  of  all  political  prin- 
ciples as  legal  rights,  and  indeed  as  partly  private. 
That  was  at  the  back  of  the  contract  theory  of  the 
origin  of  the  state.  Contracts  are  binding  only  by 
law.  The  original  compact  could  not  have  been 
plausibly  propounded,  except  to  an  age  so  deeply 
steeped  in  legalist  feeling,  that  it  was  unable  to 
picture  a  society  anterior  to  all  law.  Thus  it  was 
forced  to  the  doctrine  of  a  natural  law  and  a  natural 
state  above  and  behind  all  laws  ;  and  if  needful  over- 
riding them.  So  in  regard  to  the  Divine  Right  of 
Kings.  Its  purpose,  and  indeed  its  power  no  less  than 
its  weakness,  were  to  assert  for  monarchy  some  claim 
higher  than  that  of  mere  expediency,  to  found  it  either 


JUS  DIVINUM  IN  1646 


279 


on  a  direct  command  of  God,  or  upon  natural  rights, 
independent  of  mere  consent.  The  notion  of  funda- 
mental law,  superior  to  all  statutes,  runs  through  the 
whole  controversy  of  the  seventeenth  century.  It 
was  put  into  the  forefront  of  the  case  for  King 
Charles  by  Edward  Hyde.  It  governs  the  attack 
on  Strafford  by  Pym ;  and  it  is  at  the  bottom  of  the 
notion  of  indefeasible  hereditary  right.  Neither 
English  nor  French  believers  in  legitimism  would 
have  asserted,  that  the  King's  power  of  the  law 
could  set  aside  the  order  of  succession,  though  the 
will  of  Louis  XIV.  went  near  to  it.  In  one  aspect 
the  theory  of  Divine  Right  is  an  attempt  to  set  the 
King  above  all  positive  law,  to  treat  him  as  sovereign 
in  the  Austinian  sense.  In  another  it  is  an  attempt 
to  set  up  hereditary,  absolute  monarchy,  as  a  funda- 
mental law  of  the  state,  beyond  the  competence  even 
of  the  Crown  in  Parliament  to  change.  The  same  can 
be  seen  in  the  dislike  of  the  Presbyterian  party  to  all 
attempts  to  justify  their  system  on  any  other  footing 
than  that  of  the  Jus  Divinum.  They  feared,  moreover, 
that  such  admission  might  bring  in  its  train  many 
other  offices,  which  they  hoped  they  had  abolished 
for  ever.  They  dared  not  admit  any  such  principles 
of  developement,  or  the  right  of  the  Christian 
Society,  as  seemed  involved  in  the  Roman  or  Epis- 
copal system.  They  were  forced  to  claim  that  "Ruling 
Elders  distinct  from  all  preaching  elder  Deacons  are 
a  Divine  ordinance  in  the  Church  of  God  now  under 
the  New  Testaments"    The  claim  is  that  ruling 

1  The  Divine  Right  of  this  Church  Officer,  the  mere  Euling 
Elder,  is  much  questioned  and  doubted  by  some  because  they  find 


280 


JUS  DIVINUM  IN  1646 


elders  are  an  inherent  element  in  a  Church  '  simply 
and  strictly  so  called.'  So  with  the  Divine  Right  of 
Kings.  In  the  strictest  view  monarchy  is  inherent 
in  the  idea  of  the  state,  a  deduction  from  its  unity ; 
other  systems  tend  to  anarchy ;  although  it  is  with 
many  rather  a  sovereign  one  or  number,  that  is  so  held 
to  be  inherent,  not  in  all  states  a  hereditary  king. 

Divine  Right  always  implies  something  resting 
on  some  basis  higher  than  immediate  needs.  For  in 
any  other  sense  Divine  Right  is  a  meaningless  phrase. 
To  all,  who  are  not  atheists,  any  right  that  is  real 
must  be  in  some  sense  divine,  and  government  an 
ordinance  of  God.  To  see  clearly  the  implications  of 
a  doctrine,  it  is  commonly  useful  to  learn  what  is  the 
theory  which  it  combats.  The  Divine  Right  of  Kings 
or  Bishops  or  Presbyterianism  contradicts  the  notion 
that  it  is  a  merely  human  right  arising  out  of  consent 
and  circumstance ;  and  may  therefore  be  dispensed 
with.    In  the  case  of  kingship  the  essence  of  the 

not  the  Scriptures  speaking  so  fully  and  clearly  of  the  Euling  Elder, 
as  of  the  Preaching  Elder  and  Deacon.  By  others  it  is  flatly 
denied  and  opposed,  as  by  divers  that  adhere  too  tenaciously  to 
the  Erastian  and  Prelaticall  principles;  who  yet  are  willing  to 
account  the  assistance  of  the  Euling  Elder  in  matter  of  Church 
government  to  be  a  very  Prudentiall  way.  But  if  mere  Prudence 
be  counted  once  as  a  sufficient  foundation  for  a  distinct  kind  of 
Church  officer  we  shall  open  a  door  for  invention  of  Church  officers 
at  pleasure ;  then  welcome  Commissioners  and  Committeemen,  Ac; 
yea  let  us  return  to  our  vomit  and  resume  Prelates,  Deans,  Arch- 
deacons, Chancellors,  officials,  for  Church  Officers ;  and  where  shall 
we  stop?  "  Who  but  Christ  Jesus  himself  can  stablish  new  officers 
in  His  Church?"  The  whole  Puritan  idea  encountered  by  Hooker 
is  in  these  last  words:  "Certainly,  if  Scriptures  lay  not  before  us 
gi'ounds  more  than  prudential  for  the  Euling  Elders,  it  were  better 
never  to  have  mere  Euling  Elders  in  the  Church." 


JUS  UIVINUM  IN  1646 


281 


doctrine  is  the  sense  that  kings  are  immediate  su- 
periors under  God,  and  do  not  derive  their  power  by 
the  mediation  of  Popes  or  anyone  else.  It  is  an  anti- 
clerical weapon  framed  to  assert  the  inherent  right 
of  the  secular  power,  and  to  place  it  parallel  with, 
instead  of  subordinate  to  the  Pope.  For  the  Papacy, 
with  its  claim  to  a  jure  divino  sovereignty,  tended 
to  deny  such  rights  in  any  real  sense  to  the  sister 
power.  Moreover  in  its  conflicts  with  the  Imperial 
Power,  the  Papacy  was  strangely  assisted  by  the 
Roman  Civil  Law;  for  the  lex  regia,  of  which  it 
takes  note,  while  it  gives  to  the  Emperor  absolute 
power,  gives  it  to  him  only  as  a  delegate  of  the 
sovereign  people.  Thus,  however  great  power  be 
claimed  for  the  Emperor,  it  was  always  possible  to  say 
that  he  had  it  only  by  a  voluntary  transference  from 
the  Roman  people,  and  not  directly  from  God.  In  the 
translation  of  the  Empire  from  Greeks  to  Romans, 
when  the  Pope  put  the  crown  on  the  head  of  Charles 
the  Great,  and  earlier  in  the  deposition  of  Childeric 
with  (at  least)  the  concurrence  of  Pope  Zacharias, 
there  were  other  instances  to  the  hands  of  Papalists, 
which,  skilfully  manipulated,  fortified  the  claim  to 
treat  kings  and  emperors  as  reigning  not  indeed 
without  the  grace  of  God,  but  with  that  grace  me- 
diated through  the  ecclesiastical  authority.  We  can 
trace  the  beginnings  of  the  two  views  in  some  of  the 
expressions  used  in  the  conflict  between  Hildebrand 
and  Henry  IV.;  they  develope  in  the  struggle  between 
the  great  Hohenstaufen  Emperors  and  the  Papacy; 
and  it  flowers  into  a  great  literature  in  the  final 
mediaeval  contest  between  Pope  John  XXII.  and 


282 


JUS  DIVINUM  IN  1646 


Lewis  of  Bavaria.  The  Reformation  developed  the 
contention  on  both  sides,  though  the  doctrine  of 
the  '  indirect '  power  of  the  Papacy,  as  expounded 
by  Bellarmine,  was  an  attempt  to  safeguard  the  latter 
from  a  mere  claim  to  universal  monarchy,  and  to 
admit,  however  meagrely,  the  inherent  and  non- 
ecclesiastical  character  of  the  civil  state.  The  gist 
of  the  doctrine  of  the  Divine  Right  of  Kings  lies  in 
this  anti-clerical,  anti-Papalist  character.  It  might 
almost  be  said  that  the  anti-constitutional  side,  as 
developed  by  James  I.  or  Filmer,  was  an  after- 
thought. But  in  England  the  King  had  made 
himself  the  champion  of  the  Prayer-Book  and  died 
the  martjn"  of  episcopacy.  Hence  in  his  son's  reign 
it  is  the  clergy  who  were  the  foremost  supporters  of 
the  doctrine,  and  hence  it  came  by  many  to  be  thought 
of  as  their  property.  It  was  a  strange  irony  that 
owing  to  the  great  Rebellion  this  theory,  anti-clerical 
in  essence,  should  have  taken  on  a  sort  of  clericalist 
tinge,  which  in  popular  apprehension  it  never  lost.  It 
was  not  strange  that  James  II.  failed  in  his  attempt 
to  use  it  as  a  means  of  Papalist  reaction ;  he  made 
the  not  uncommon  error  of  taking  the  logical  meaning 
of  the  theory  when  stated  in  words,  as  though  it  were 
equivalent  to  its  practical  import.  In  words  the 
Divine  Right  of  Kings  implied  sheer  absolutism  with 
the  exception  of  the  succession ;  in  reality  it  was  an 
assertion  of  the  inherent  right  of  the  civil  as  against 
the  ecclesiastical  authority.  James  II.  tried  or  was 
thought  to  be  trying  to  use  the  absolutist  theory  in 
order  to  restore  the  very  power,  that  of  the  Pope, 
against  which  it  had  been  forged.    Naturally  he 


JUS  DIVINUM  IN  1646 


283 


failed  and  learned  to  his  cost  that  theories  must 
be  interpreted  according,  not  to  the  most  that  they 
can  logically  be  held  to  imply,  but  to  the  atmosphere 
in  which  they  were  developed. 

The  essence  then  of  the  Divine  Right  claim  is, 
that  it  asserts  an  inherent,  underived  (so  far  as  men 
are  concerned)  authority  for  civil  society.  In  its 
later  stages  the  notion  of  direct  Divine  institution 
sinks,  if  not  out  of  sight,  at  least  out  of  significance, 
as  compared  with  the  sense,  that  it  is  Divine  because 
it  is  natural.  In  the  argument  with  the  supporters 
of  the  original  compact,  the  Royalists  were  constantly 
claiming  that  the  state  is  a  natural  growth,  as 
against  their  opponents,  to  whom  it  was  a  manu- 
factured article.  In  this  controversy  of  the  Presby- 
terians with  their  Independent  or  Erastian  adver- 
saries, it  is  curious  to  see  how  often  Rutherford  and 
others  are  led  to  speak  of  the  Church  as  organically 
articulated.  There  is  another  passage  with  which 
the  transition  from  Divine  to  natural  right  is  con- 
sciously attempted.    It  is  worth  quoting. 

"Is  there  not  a  jus  divinum  in  the  light  of  Nature? 
In  the  present  case  of  Church  government  that  which 
is  agreeable  to  the  true  light  of  nature  must  needs 
be  confessed  to  be  jwe  divino.  Though  light  of 
Nature  be  but  dim,  yet  it  will  lend  some  help  in  this 
particular,  e.g.  Light  of  Nature  teaches  (1)  that  as 
every  Society  in  the  world  hath  a  distinct  govern- 
ment of  its  own  within  itself,  without  which  it  could 
not  subsist,  so  must  the  Church,  which  is  a  Society, 
have  its  own  distinct  government  within  itself, 
without  which  it  cannot  subsist  no  more  than  any 


284 


JUS  DIVINUM  IN  1646 


other  Society ;  (2)  that  in  all  matters  of  difference 
the  lesser  number  in  every  Society  should  give  way 
to  the  greater,  and  the  matters  controverted  and 
concluded  in  by  the  major  part,  else  there  could 
never  be  an  end ;  and  why  not  so  in  the  Church '  ? " 

Here  it  seems  is  the  Divine  Right  of  majority 
rule.  But  it  is  obvious  that,  when  we  have  got  so 
far  as  this.  Divine  Right  will  soon  become  the  name 
for  natural  right,  and  the  transition  to  modem  politics 
begins;  unless,  indeed,  that  be  held  to  lie  in  the 
change  from  natural  right  to  pure  utilitarianism.  For 
the  notion  at  bottom  of  the  Divine  Right  or  the  natural 
rights  theory  is  the  same.  It  asserts  either  for  the 
King  or  for  the  state  or  for  the  individual  or  for  the 
general  will  or  for  the  right  to  work,  to  a  living 
wage,  or  equality  of  opportunity,  or  what  not,  some 
supreme  overriding  principle,  which  is  superior  to  all 
institutional  rights  and  ought  to  be  their  criterion, 
not  their  creation.  On  reflection  all  who  try  to  see 
in  politics  some  grounds  other  than  those  of  mere 
historical  developement  or  immediate  expediency, 
will  be  found  in  some  degree  to  share  in  the  notion 
of  natural  rights. 

Let  us  now  pass  on  to  some  further  thoughts, 
which  the  controversy  for  the  Divine  Right  of  Pres- 
bytery suggests.  Much  light  is  thrown  by  it  on  the 
other  controversy  for  the  Divine  Rights  of  Kings. 
Martin  Luther  used  to  boast,  and  with  some  justice, 
that  no  one  had  done  more  to  promote  high  views  of 
princely  rule  than  himself  By  this  he  meant  the 
power  of  the  territorial  prince,  not  that  of  the  imperial 
1  Jus  Divinum,  11. 


JUS  DIVINUM  IN  1646 


285 


government.  This  expansion  he  efifectcd  in  more  ways 
than  one.  By  introducing  further  division  within 
the  Empire  he  shattered  all  hope  of  any  real  control 
of  the  small  states  by  the  central  power,  and  the 
local  princelings  were  free  to  develope  into  sovereign 
states,  aided  by  the  force  of  religion.  Secondly,  he 
shattered  or  enormously  weakened  the  one  serious 
force  that  could  hold  in  check  the  rising  authority 
of  the  state  ;  while  the  functions  of  government  were 
enormously  widened  with  the  growth  of  modern 
ideas.  Thirdly,  in  his  Appeal  to  the  German  nobility 
he  turned  deliberately  to  that  power,  the  lay  prince, 
which,  no  less  than  the  hierarchy,  existed  within  the 
Church,  and  sought  its  aid  for  the  work  of  Refor- 
mation. Thus  all  competing  agencies  were  shattered, 
and  the  whole  power  given  into  the  hands  of  the 
'godly  prince';  and  the  clergy  (as  Luther  afterwards 
began  to  see)  reduced  to  a  lower  position  than  they 
had  held  for  centuries.  Himself  a  revolutionary, 
Luther  had  scarcely  any  notion  of  popular  freedom. 
At  least  from  the  time  of  the  Peasants'  Revolt  he 
threw  all  his  influence  on  the  side  of  the  territorial 
prince.  So  far  as  concerns  religion  the  theory  of 
this  revolution  was  set  forth  in  the  theses  of  Erastus, 
and  was  shared  substantially  by  nearly  all  the  Re- 
formers, whether  English  or  Continental.  Between 
Luther,  Laud,  and  even  John  Knox,  there  is  less  to 
choose  in  this  matter  than  is  usually  imagined ;  all 
allowed  very  large  powers  to  the  '  godly  prince,'  and 
claimed  it  to  be  his  duty  to  suppress  idolatry.  None, 
not  even  Knox,  had  reached  to  the  point  of  con- 
ceiving the  Church  and  the  State  as  two  distinct 


9 


286 


JUS  DIVINUM  IN  1646 


societies ;  and  however  high  they  might  desire  in 
practice  to  place  the  persuasive  function  of  the  hier- 
archy, whether  Prelatic  or  Presbyterian,  all  regarded 
the  lay  power  in  a  much  higher  light  than  had  the 
mediaeval  ecclesiastical  theory.  England  especially 
was  dominated  by  the  notion  of  Church  and  State, 
as  different  aspects  or  departments  in  one  society, 
and  the  authoritative  position  of  the  civil  magistrate 
was  proclaimed  against  Papist  and  Brownist  alike  in 
the  Ecclesiastical  Polity  of  Richard  Hooker.  In  the 
latter  half  of  the  sixteenth  century  the  Presbyterians 
began  to  develope  the  notion  of  the  two  kingdoms, 
as  stated  by  Andrew  Melville  in  his  famous  sermon 
before  King  James : 

"  Therefore,  Sir,  as  divers  times  I  have  told  you, 
so  now  again  I  must  tell  you  there  are  two  kings 
and  two  kingdoms  in  Scotland,  that  is  King  James 
the  head  of  the  Commonwealth,  and  there  is  Christ 
Jesus  the  King  of  the  Church,  whose  subject 
King  James  VI.  is,  and  of  whose  kingdom  he  is  not 
a  king,  nor  a  lord,  nor  a  head,  but  a  member." 
Robert  Browne,  the  founder  or  forerunner  of  Sepa- 
ratism, asserted  also  the  entire  independence  of  the 
two  spheres  in  his  tract  Reformation  without  Tarrying 
for  any. 

In  similar  case  were  the  Anabaptists.  Thomas 
Cartwright  and  those  of  the  Puritan  party  who 
attempted  to  set  up  the  Presbyterian  discipline,  and 
to  force  it  on  the  people  through  Parliament,  did 
indeed  set  up  the  doctrine  of  the  two  kingdoms,  and 
thereby  astounded  a  man  like  Archbishop  Whitgift, 
to  whom  such  a  notion  seemed  inconceivable.  The 


JUS  DIVINUM  IN  1646 


287 


other  side,  whether  Presbyterian  or  Jesuit,  regarded 
the  high  notion  of  the  sacredness  and  omni-com- 
petence  of  the  state  as  "Machiavellistica  et  Turcica." 
Probably  it  was  his  sense  of  this  doctrine  of  the 
distinctness  of  the  two  societies  as  an  inroad  upon 
the  sovereignty  of  the  state,  that  led  James  I.  to  his 
utterance  that  "  Presbyterianism  agreeth  as  well 
with  monarchy  as  God  with  the  devil."  He  may,  of 
course,  have  meant  thereby  only  the  same  thing  as 
'  no  bishop  no  king,'  that  unless  in  each  diocese  there 
be  a  monarch,  you  can  hardly  keep  one  in  the  king- 
dom. Yet  it  is  more  likely  that  this  phrase  referred, 
not  to  the  form  of  government  of  the  Presbyterian 
system,  but  to  its  claim  to  inherent  independence  as 
of  Divine  Right. 

Yet  it  is  in  this  very  claim  that  lies  the  service 
to  true  politics  performed  by  the  Presbyterian  zealots. 
With  the  Divine  Right  of  Kings  in  its  developed 
and  strict  meaning  few  now  will  sympathise.  Yet 
we  may  see  in  it  one  of  the  most  potent  factors  in 
the  developement  of  the  modern  world,  if  we  regard 
its  true  objective,  that  of  asserting,  as  against  eccle- 
siastical pretensions,  the  Divine  and  inherent  rights 
of  the  civil  power,  and  the  natural  necessity  of 
political  society.  Nor  is  there  any  danger  to  the  free- 
dom of  the  Churches  in  this,  provided  the  civil  power 
makes  no  attempt  at  enforcing  any  single  system 
of  religion.  On  the  other  hand  the  Presbyterians 
and  the  Papalists  were  right  in  asserting  the  positive 
limits  set  to  all  state  autocracy  by  the  claims  of 
religion.  No  Christian  can  logically  believe  in  the 
entii-e  supremacy  of  the  civil  power  in  the  same  way 


288 


JUS  DIVINUM  IN  1646 


as  a  member  of  the  Pagan  Empire  could  hold  to  it. 
The  doctrine  of  the  two  kingdoms  carried  the  Pres- 
byterians to  a  higher  point  than  the  Papalist  of  the 
preceding  age,  for  it  enabled  them  to  assert  what 
was  in  theory  a  claim  to  complete  independence, 
without  denying  the  rights  of  the  civil  power  or 
asserting  that  its  authority  existed  only  by  grace  of 
the  hierarchy.  Even  in  regard  to  the  establishment 
of  a  single  religion  they  had  reached  in  theory  a 
point  not  very  far  removed  from  that  of  the  poli- 
tiques  in  France.  For  the  writers  of  Jus  Divinum 
and  The  Divine  Right  of  Presbyterian  Oovernment 
and  Aaron's  Rod  Blossoming,  while  claiming  for  the 
civil  magistrate  the  right  to  persecute,  are  at  pains 
to  assert  that  he  is  to  persecute  for  civil  ends,  in  order 
to  promote  the  peace  of  the  Commonwealth,  and  not 
because  it  is  God's  ordinance.  They  claimed  that  the 
King,  as  King,  was  an  officer  of  the  Church,  and  would 
have  nothing  of  the  "mixta  persona"  doctrine  so 
popular  with  the  Royalists.  They  gave  up  the  notion 
that  we  have  need  to  consider  only  one  society,  of 
which  Church  and  State  are  separate  aspects,  or  (if 
you  confine  your  attention  to  the  officers)  different 
departments.  They  attempted  to  claim,  at  least  in 
the  English  controversy,  a  purely  ecclesiastical  cha- 
racter for  excommunication,  and  to  exempt  it  from 
civil  penalties.  Yet  they  committed  one  fatal  error. 
The  real  difficulty  had  been  stated  by  Erastus  in  the 
previous  century.  Provided  the  Divine  Right  of  the 
Church  be  of  the  highest  kind,  if  only  one  religion 
be  tolerated,  [and  neither  Presbyterians  nor  Erastians 
contemplated  anything  but  a  state  homogeneous  in 


JUS  DIVINUM  IN  1646 


289 


religion,]  then  even  censures  merely  ecclesiastical 
will  produce  dangerous  results.  Let  me  quote  one 
passage :  "  He  sayth  the  Minister  is  punishable  by 
the  Law  of  the  land;  here  is  the  difficulty;  if  the 
Minister  and  Elder  have  power  given  of  Christ  to 
censure  all  Christians,  and  they  use  this  power 
according  as  Christ  hath  committed  to  them,  what  is 
the  magistrate  above  these  officers,  and  can  he  make 
laws  to  bound  and  limit  the  laws  of  Christ  ?  If  they 
have  power  to  bind  may  the  magistra,te  loose  ?  If 
they  use  this  power  may  the  Christian  magistrate 
punish  them  ?  This  were  to  allow  Christ  a  very 
meane  kingdom ;  that  his  owne  subjects  should 
control  him ;  but  you  will  say,  if  he  commit  any- 
thing worthy  confiscation  of  goods  or  life  or  liberty, 
the  magistrate  may  inflict  it  upon  him ;  but,  if  he 
attempt  to  doe  it  unjustly,  he  is  ungodly  and  the 
Ministers  and  Elders  will  excommunicate  him,  and 
their  coordination  maketh  them  their  own  judges. 
As  soone  as  the  magistrate  shall  distast  any  of  their 
actions,  presently  he  is  ungodly  and  send  him  to  Satan, 
and  then  what  party  the  eloquence  of  the  clergy  may 
find  against  the  magistrate,  if  he  should  go  about 
to  restrain  them,  let  wise  men  judged" 

This  argument  is  perfectly  just  on  one  condition, 
that  only  one  religion  be  allowed  in  the  state.  It  was 
their  passionate  intolerance  that  was  the  error  of  the 
Presbyterian  party,  no  less  than  that  of  many  of  their 
opponents.  They  were  not  wrong  in  attacking,  so  far 
as  they  did  attack,  the  Divine  Right  of  the  State  to  an 
authority,  which  included  ecclesiastical  jurisdiction. 

'  Hussey,  A  Plea  for  Christian  Magistracie,  7. 

r.  19 


290 


JUS  DIVINUM  IN  1646 


What  they  asserted  is  only  what  must  be  asserted 
by  any  religion,  indeed  by  any  moralist  who  be- 
lieves in  the  individual  conscience,  that  there  must 
be  cases  in  which  "  we  must  obey  God  rather  than 
man."  Mere  civil  law,  even  though  set  up  by  the 
general  will,  can  never  be  absolute.  It  is  the  service 
of  the  martyrs  of  all  ages  and  in  every  cause  to  say 
to  the  overweening  claims  to  authority  of  the 
political  ruler,  from  Nebuchadnezzar  to  Nero  and 
thence  to  Bismarck,  as  they  see  the  rising  tide  of 
Machiavellian  statesmanship  :  "  Hitherto  shalt  thou 
go  and  no  further ;  and  here  shall  thy  proud  waves 
be  stayed."  Where  they  were  wrong  was  in  the 
belief  which  they  shared  with  many  of  the  adver- 
saries, that  religious  toleration  was  a  civil  danger; 
and  that  while  the  State  is  distinct  from  the  Church, 
it  is  nevertheless  bound  to  take  its  orders  therefrom 
in  the  paramount  topic  of  what  religion  to  prescribe. 
They  were  right  in  asserting  that  there  were  two 
kingdoms ;  where  they  were  wrong  was  in  denying 
that  there  might  be  twenty-two.  Religious  bodies 
in  a  state  are  harmless,  if  they  are  numerous.  In 
the  same  way  the  civil  ruler  was  right  in  claiming 
independence  of  the  ecclesiastical  authority,  he  was 
wrong  in  denying  the  distinctness  of  the  Church, 
and  in  attempting  to  proscribe  religions  which  he  did 
not  like ;  or,  as  in  the  words  of  one  German  prince- 
ling, that  the  "conscience  of  his  subjects  belonged 
to  him." 

It  would  appear  further  that  some  at  least  of 
the  Presbyterians  understood  the  implications  of  this 
doctrine ;  i.e.  that  it  does  not  merely  concern  the 


JUS  DIVINUM  IN  1646 


291 


relations  between  two  societies,  Church  and  State, 
each  unlike  any  other,  but  rather  the  nature  of 
human  society  in  general.  Is  not  all  larger  society 
composed  of  a  myriad  number  of  groups ;  and  has 
not  each  of  these  groups,  in  so  far  as  it  be  permanent, 
some  real  inherent  power,  which  is  something  more 
than  a  mere  delegation,  which  is  recognized  by  the 
superior  power,  but  not  created  by  it  ?  As  it  is  put 
in  Jus  Divinum : 

"  It  is  granted  that  classicall  or  synodall  authority 
carmot  be  by  scripture  introduced  over  a  particular 
Church  in  a  privative  or  destructive  way  to  that 
power  which  God  hath  bestowed  upon  it,  but  con- 
trarily  it  is  affirmed  that  all  the  power  of  assemblies 
which  are  above  particular  congregations  is  conno- 
tative  and  perfective  to  the  power  of  the  inferior 
congi-egations. 

"  It  is  gTanted  that  the  Highest  Ecclesiasticall 
assembly  in  the  world  cannot  require  from  the  lowest 
a  subordination  absolute,  and  pro  arhitrio  at  their 
own  mere  will  and  pleasure  but  only  in  some  respect, 
subordination  absolute  being  only  to  the  Law  of  God 
laid  down  in  Scripture ;  we  detest  Popish  tyranny 
which  claims  a  power  of  giving  their  will  for  a  Law^" 

The  Presbyterians,  however,  did  not  see ;  and 

1  Jus  Divinum,  p.  230.  Cf.  also  the  following  passage  from 
Baillie's  Letters:  "That  which  grieved  Mr  David  was  the  matter 
of  Church  Sessions,  which  he  maintains  to  have  no  divine  right 
in  particular,  but  to  be  only  as  a  committee  from  the  Presbyterie, 
to  execute  these  arts  of  jurisdiction,  which  the  Presbytery  thinks 
fitt  to  commit  thereto."  iii.  59,  60.  A  great  deal  of  controversy 
takes  place  on  this  point,  whether  the  Church  Session  has  inherent 
or  only  delegated  power. 

19—2 


292 


JUS  DIVINUM  IN  1646 


until  recent  years  few  who  have  followed  them  were 
able  to  see  the  vast  implications  of  their  principle. 
That  is  the  real  crux  of  the  question  raised  between 
the  advocates  of  the  two  forms  of  the  doctrine  of 
Divine  Right.  Is  the  civil  society  a  single  power 
from  which  all  rights  proceed  by  delegation  ?  In 
this  case  there  is  no  real  check  upon  tjTanny,  how- 
ever democratic  the  form  of  government.  Or  is  the 
state  merely  the  final  bond  of  a  multitude  of  bodies, 
Churches,  trade  unions,  families,  all  possessing  in- 
herent life,  a  real  thing,  recognized  and  regulated  by 
the  government,  but  no  more  the  creation  of  its  fiat, 
than  are  individual  persons  ?  That  is  the  problem 
raised  in  the  form  suited  to  those  days  by  this  strange 
controversy  about  the  rights  of  ruling  elders.  Once 
more  is  the  same  problem  being  raised,  though  in  a 
different  form  and  with  wider  issues.  Religious  bodies 
and  their  claims  are  ever  with  us ;  but  a  whole  com- 
plex of  converging  forces,  economic,  social  and  political 
and  moral  make  it  urgent.  I  cannot  develope  it  here 
without  passing  beyond  historical  fi-ontiers.  If  you 
would  like  to  study  the  topic  in  the  abstract, 
Maitland's  Introduction  to  Gierke's  Medieval  Po- 
litical Theories  is  a  good  beginning.  In  the  concrete 
perhaps  you  will  find  it  not  unfruitful  to  study  some 
book  such  as  that  on  The  Real  Democracy,  edited 
by  Mr  J.  E.  F.  Mann,  or  some  of  those  writers  who 
deal  with  Guild-Socialism  or  Sjmdicalism. 


ERASTUS  AND  ERASTIANISM 


Was  Erastus  an  Erastian  ?  The  question  is  not 
superfluous.  For  party  names  are  commonly  mis- 
nomers. And  while  there  is  no  more  frequent  term 
of  ecclesiastical  vituperation  than  Erastianism,  yet 
it  is  hardly  unfair  to  say  that  many  of  those  who 
make  use  of  it  appear  to  think  that  the  continual 
employment  of  Erastus'  name,  or  its  derivative,  is 
sufficient  compliment  to  his  memory  to  excuse  igno- 
rance of  his  life,  his  writings,  and  the  controversy 
which  was  their  occasion \  But  we  cannot  under- 
stand Erastianism  in  vacuo  apart  from  the  influences 
which  produced  it,  and  the  name  alone  is  presump- 
tive evidence  of  some  relation  between  the  doctrine 
and  its  alleged  author.  It  may,  therefore,  be  not 
superfluous  to  inquire  a  little  into  the  influences 
under  which  the  notions  of  Erastus  were  formed,  and 
thus  to  gather  their  true  import.  Such  an  investi- 
gation may  throw  light  on  the  problem  of  the  relation 
between  Church  and  State,  as  it  presents  itself  to 

1  I  find,  for  instance,  in  one  of  the  most  famous  of  theological 
encyclopaedias  (Herzog)  a  statement  to  the  effect  that  Erastus 
founded  a  sect  in  this  country. 


294 


ERASTUS  AND  ERASTIANISM 


the  minds  of  those  who  disbelieve  in  liberty  of  con- 
science. For,  as  we  shall  see,  Erastus  was  concerned 
solely  with  the  question  as  to  the  proper  method  and 
authority  for  enforcing  ecclesiastical  discipline  in  a 
State  which  was  uniform  in  its  religion'.  He  was 
not  concerned  either  with  the  question  as  to  the 
right  to  proclaim  truth,  or  as  to  the  coercive  religious 
authority  of  a  State  which  allowed  more  than  one  or 
persecuted  the  true  faith.  His  views  might  have 
reference  to  modem  Russia,  but  except  constructively 
can  have  no  bearing  on  English  ecclesiastical  con- 
troversies of  to-day.  He  is  concerned  with  moral 
discipline,  not  doctrine ;  with  a  uniform,  not  a  tole- 
rant polity.  But  it  may  be  convenient  first  of  all  to 
detail  the  facts  of  his  lifel  Thomas  Liiber  was  born 
at  Baden,  in  Switzerland,  on  September  7, 1524.  He 
thus  came  under  the  influence  of  the  Zwinglian  form 
of  the  Reformation,  and  at  no  time,  so  far  as  can  be 

'  Canon  Perry's  assertion  that  Erastus  "wrote  a  treatise  with 
the  object  of  proving  that  in  Christian  commonwealths  the  secular 
authorities  are  the  proper  teachers  and  administrators  of  religious 
discipline,"  appears  to  me  a  singularly  unfortunate  way,  to  say  the 
least,  of  describing  the  Explicatio.  Student's  Eng.  Church  Hist. 
n.  12. 

2  For  these  facts  I  would  refer  the  reader  especially  to  M. 
Bonnard's  thesis,  Thomas  Eraste  et  la  discipline  ecclesiastique, 
Lausanne  1894.  This  is  an  admirable  work  based  on  manuscript 
as  well  as  other  sources,  in  which  the  author  exhibits  the  whole 
growth  of  Erastianism,  properly  so  called,  and  moreover  gives  in 
the  footnotes  frequent  quotations  from  unpublished  letters,  which 
are  most  valuable.  The  chapter  Die  Kampfe  wegen  der  Kirchen- 
zucht  in  Sudhoff's  C.  Olevianus  und  Z.  Ursinus'  '  Leben  und 
ausgewcihlte  Schriften '  is  also  valuable  in  a  similar  way,  though 
short  and  very  hostile  to  Erastus.  I  shall  cite  these  books  as 
B.  and  S.  respectively. 


KRASTUS  AND  ERASTIANISM 


295 


proved,  inclined  to  any  other',  nor  does  there  appear 
to  be  any  evidence  that  his  politico-ecclesiastical 
notions  were  directly  derived  from  Luther,  as  has 
been  suggested ;  the  presumption,  as  will  be  seen,  is 
the  other  way.  In  1542  he  matriculated  at  Basel, 
translating  his  name  Ltiber  into  Erastus,  without 
the  grammatical  error  which  was  the  hard  fate  of 
the  gi-eat  scholar  of  whom  he  was  so  nearly  a  name- 
sake I  He  attached  himself  to  the  philosophical 
faculty  and  studied  classics,  mathematics,  and  theo- 
logy. After  two  years  a  visitation  of  the  plague  led 
to  his  quitting  Basel.  Thence  he  went  to  Italy, 
where  he  appears  to  have  been  supported  by  a  rich 
patron,  spending  three  years  at  Bologna  and  six  at 
Padua,  and  greatly  distinguishing  himself  by  his 
studies  in  medicine.  In  Italy  he  married  a  lady  of 
noble  birth,  who,  when  a  widow,  was  to  marry  the 
man,  also  an  Italian,  through  whose  action  alone  the 
fame  of  Erastus  has  survived.  After  this  he  spent 
some  years  as  court  physician  at  Henneberg.  He 
rapidly  attained  distinction  as  an  exponent  of  the 
most  enlightened  medical  science  of  the  time,  and 
wrote  works  on  this  subject,  larger  and  more  numerous 
than  the  little  volume  by  which  we  remember  him. 
He  opposed  the  views  of  Paracelsus,  and  was  a  great 
assailant  of  impostures,  such  as  alchemy  and  astro- 
logy, though  he  was  a  believer  in  witchcraft,  and  did 

1  I  say  this,  assuming  that  the  question  as  to  his  alleged 
Arianism  is  decided  in  his  favour.  The  very  interesting  letter 
of  Silvanus  reproaching  Erastus  with  having  been  the  cause  of 
his  apostasy,  does  not  really  contain  any  evidence  as  to  the 
unorthodoxy  of  Erastus.    S.  App.  B.  p.  507. 

2  Cf.  Jebb,  Rede  Lecture,  'Desiderius  Erasmus,' 


296 


ERASTUS  AND  ERASTIANISM 


not  in  that  matter  rise  above  his  age^  But  his 
ability,  at  once  general  and  special,  was  recognized 
by  contemporary  opinion,  whether  that  opinion  were 
friendly  or  hostile — and  it  was  both.  Beza  at  Geneva 
was  a  friend,  and  apparently  remained  so,  in  spite  of 
the  controversy.  Bullinger  and  Gwalther  at  Zurich 
were  not  merely  supporters,  but  intimates,  into  whose 
ears  the  troubles  of  the  libertarians  at  Heidelberg 
were  continually  poured.  And  Erastus,  universally 
recognised  as  the  chief  of  his  party,  appears  to  have 
had  one  great  quality  of  a  leader,  the  power  of  at- 
tracting loyalty.  Yet  on  the  other  hand  he  would 
appear  to  have  been  a  mark  for  virulent  hostility, 
and  to  have  been  treated  with  as  much  contumely 
by  his  opponents  as  Erastianism  has  been  since  his 
time  by  many  who  have  hardly  heard  his  name^. 

But,  at  any  rate,  he  was  an  outstanding  man  as 
a  scientific  physician.  And  whether  or  no  we  agree 
with  his  views  on  ecclesiastical  politics,  there  can  be 

"  This  may  be  the  cause  why  a  modem  writer  tells  us  that  he 
was  not  an  enlightened  man  in  the  modem  sense  of  the  term. 
Personally  I  should  say  that  in  the  only  sense  of  the  term  which 
we  have  a  right  to  apply  to  the  sixteenth  centuiy  Erastus  was 
eminently  an  Aufgeklfirter. 

2  Cf.  Bullinger's  remarks  to  Dathenus,  "Modestiam  ergo  in  te, 
mi  frater  Dathene,  requiro,  ne  forte  non  sine  causa  earn  nobis 
iniicias  cogitationem  si  quando  potestatem  consequamini  in  Ec- 
clesia  excommunicandi,  fore  ut  omnes,  quotquot  per  omnia  vestra 
rum  approbarint,  atheismi  sitis  condemnaturi  ac  expulsuri  ad  ipsos 
usque  religionis  nostrae  hostcs  truculentissimos."  E.xplicatio,  358; 
and  Gwalther  to  Beza,  "Quid  vero  de  iis,  qui  Heydelbergae  hanc 
causam  agunt,  sperare  possimus,  satis  nos  una  haec  audacia 
admonet,  qua  suae  sententiae  subscribere  nolentes  atheismi  ac- 
cusant, et  eos  quidem  viros  in  quorum  fide,  doctrina,  moribus 
nemo  bonus  aliquid  unquam  desideravit."    JUd.  379,  80. 


ERASTUS  AND  ERASTIANISM 


297 


no  doubt  of  the  skill  and  lucidity  with  which  they 
were  propounded. 

In  1557  he  received  the  appointment  which  was 
to  fling  him  into  such  bitter  controversy,  and  to 
caiTy  his  name  down  the  centuries.  His  presence 
being  sought  at  the  courts  of  Dresden  and  Heidel- 
berg alike,  Erastus  preferred  the  offer  of  the  Elector 
Otto  Hemy,  who  was  founding  a  chair  of  therapeutics, 
and  remained  at  Heidelberg  until,  three  years  before 
his  death,  he  was  driven  out  by  an  'Erastian'  religious 
revolution.  His  energies  found  scope  in  the  work,  so 
necessary,  so  arduous,  and  so  frequent  in  universities, 
of  drawing  up  new  statutes  and  a  fresh  programme 
of  studies.  He  was  elected  Rector  of  the  University 
in  1558,  and  became  also  a  member  of  the  church 
council  of  Heidelberg,  a  post  which  he  voluntarily 
resigned  in  1564.  This  is  some  evidence  of  the 
weight  he  was  already  acquiring  as  a  theologian. 
But  we  have  more.  The  situation  of  religious  parties 
at  Heidelberg,  when  Erastus  arrived  there,  was  briefly 
this :  The  Elector  was  a  tolerant  Lutheran,  and 
Heidelberg  appears  to  have  been  a  refuge  for  theo- 
logical eccentrics  of  all  nations,  just  as  in  our  century 
London  has  been  for  political  exiles  ^  In  the  city 
there  were  two  parties,  Lutheran  and  Swiss,  in 

*  Bullinger  argues  that  Erastus'  services  to  the  exiles  should 
be  a  good  reason  for  treating  him  with  consideration.  "  Si  fideles 
labores  eius  non  praecessissent,  tibi  aliisque  exulibus  vix  tale 
patuisset  hospitium,  quali  nunc  frueris  una  cum  aliis  multis. 
Beneficia  eius  turn  in  peregrinos  tum  domesticos  collocata,  eruditio 
item  eius  eximia  et  singularis,  denique  vera  eius  et  sincera  pietas, 
ob  quae  a  bonis  laudatur  omnibus,  aliud  sane  ei  destinarat  prae- 
mium,  quam  nunc  ipsi  rependitur  a  nonnullis."    Explicatio,  366. 


298 


ERASTUS  AND  ERASTIANISM 


sympathy.  These  again  were  divided  into  groups,  the 
former  into  the  strict  party,  and  those  who  followed 
Melanchthon,  the  latter  into  Calvinists  and  Zwing- 
lians,  of  which  last  Erastus  was  the  most  distinguished 
lay  representative.  Each  party  in  turn,  we  may  say, 
gained  the  upper  hand,  tolerant  Lutheran,  Zwinglian, 
Calvinist,  strict  Lutheran.  The  Erastian  controversy 
was  the  result  of  the  conflict,  closed  as  it  was  by  a 
Lutheran  revolution  and  the  retirement  of  Erastus. 
The  latter  had  early  won  the  hatred  of  the  Lutherans 
by  his  successful  support  of  the  claims  of  a  certain 
Etienne  Sylvius,  who,  presumably  a  Zwinglian  him- 
self, refused  to  do  the  bidding  of  the  theological 
professor  Hesshus  and  attack  the  sacramental  doc- 
trines of  Catholics  and  Zwinglians  alike. 

In  1559  Otto  Henry  died,  and  was  succeeded  by 
Frederic  III.,  a  man  of  austere  piety  and  strongly 
anti-Lutheran  in  sympathy.  Colloquies  took  place 
in  1560  between  the  parties,  and  Erastus  secured 
the  enthusiastic  praise  of  the  great  Calvinist  Olevi- 
anus,  who  declared  that  few  theologians  were  his 
equals  in  learning  and  wisdom,  and  looked  to  gaining 
much  advantage  from  his  support".  He  was  so 
successful  that  in  August  the  Elector  definitely 
introduced   the   'reformed'  faith,  and  proscribed 

*  "Utinam  vir  ille  totum  se  abderet  sacris  Uteris  ad  quas  pro- 
pendet  eius  zelus,  sed  nescio  quo  pacto  vix  medendi  vocationem 
audet  relinquere,  neque  reliqui  senatores  ecclesiastici  tarn  sunt 
eordati  ut  eum  extrudant  in  messem,  licet  maxima  et  pene  incredi- 
bili  ministrorum  penuria  laboremus,  ipse  vero  incredibili  dexteritate 
polleat.  Ausim  dieere  Germaniam  paucissimos  habere  tantae 
doctrinae  et  prudentiae  viros  theologos."  Olevianus  to  Calvin, 
B.  App.  n.  p.  203. 


ERASTUS  AND  ERASTIANISM 


299 


alike  Catholicism  and  Lutheranism '.  In  1563  the 
'  reformed '  catechism  of  Heidelberg,  composed  by 
Olevianus  and  Ursinus,  was  introduced,  being  sup- 
ported by  Erastus,  who  is  the  probable  author  of  the 
Biichlein  vom  Brotbrechen.  Erastus  also  took  part 
in  the  colloquy  of  Maulbronn  (1564),  and  published 
two  other  books  on  the  Ubiquitarian  controversy. 

As  has  been  seen,  the  anti-Lutheran  Protestant 
party  had  triumphed  in  Heidelberg,  and  won  the 
Elector  to  their  exclusive  support.  It  was  natural 
that,  so  much  being  accomplished,  those  who  looked 
to  Geneva  for  guidance  should  desire  the  introduc- 
tion of  that  famous  'discipline,'  which  was  for  them 
almost  the  raison  d'etre  of  religious  organization. 
By  discipline  is  meant  an  organized  Presbyterian 
police  des  mceurs,  beginning  with  the  parish  or 
church  as  its  unit,  with  a  hierarchy  of  consistory, 
classis,  provincial  and  national  synods,  all  ecclesias- 
tical, all  claiming  to  he  jure  divino,  independent  of 
the  civil  power,  occupied  in  pronouncing  sentence  of 
excommunication  upon  all  those  persons  whose  lives, 
in  some  smalP  or  large  particular,  had  failed  to  meet 
with  the  approval  of  ruling  elders,  or  did  not  submit 
to  a  friendly  admonition  or  repent  in  time.  This 

*  The  author  of  the  historical  introduction  to  the  tercentenary 
edition  of  the  Catechism  is  of  opinion  (pp.  43 — 5)  that  the  Elector 
did  not  intend  to  break  with  the  followers  of  Melanchthon  or  the 
confession  of  Augsburg,  even  by  the  introduction  of  the  Catechism, 
but  that  intolerant  Lutheranism  refused  to  regard  him  any  longer 
as  anything  but  an  enemy. 

^  It  is  fair  to  say  'small,'  for  one  of  Beza's  arguments  for  the 
necessity  of  the  discipline  is  that  the  magistrate,  if  left  to  himself, 
might  leave  unpunished  some  offendiculurn.    Tractatus,  120. 


300 


ERASTUS  AND  ERASTIANISM 


was  claimed  to  be  of  Christ's  institution ;  if  not  a 
necessary  note  of  a  true  church,  at  least  its  most 
desirable  accompaniment.  It  flourished  in  Geneva, 
its  birthplace,  in  the  Netherlands,  in  France,  and 
was  for  centuries  the  most  overwhelming  ecclesias- 
tical force  in  Scotland'.  The  divine  right  of  the 
discipline  was  the  occasion  first  under  Queen  Eliza- 
beth, and  then  under  the  Westminster  Assembly,  of 
furious  controversy  in  this  country.  Now  the  life  of 
Erastus  might  be  described  as  a  polemic  against 
ruling  elders.  It  was  only  in  subservience  to  his 
design  of  protesting  against  what  seemed  to  him  a 
monstrous  usurpation  of  arbitrary  power  that  he 
developed — so  far  as  he  developed  at  all — his  theory 
as  to  the  functions  of  the  civil  magistrate. 

It  appears  that  so  early  as  1556  a  suggestion 
was  made  for  the  introduction  of  excommunicating 
elders  into  Heidelberg.  This,  however,  came  to 
nothing.  But  Heidelberg  being  a  camp  of  refuge, 
there  came  exiles  from  France  and  the  Netherlands 
anxious,  regardless  of  the  carnal  appetites  of  the 
population,  to  see  this  holy  inquisitorial  system  at 
its  work  of  saving  souls  and  protecting  the  sacra- 
ment^. Erastus  declares  that,  irrespective  of  right, 
it  seemed  to  him  highly  inexpedient  to  set  about 
excommunicating  a  population  who  in  reality  needed 
conversion,  for  not  one-thirtieth  of  the  people  were 

1  Buckle  considered  the  effects  of  the  system  worse  than  those 
of  the  Spanish  Inquisition. 

2  Cf.  Bullinger  to  Beza,  Explicatio,  371,  "  Non  sine  causa  mur- 
murant  quod  omnia  fere  administrat  Princeps  per  Niderlandos  sive 
Belgas,  homines  peregi-inos,  suis  illis  penitus  praeteritis." 


ERASTUS  AND  ERASTIANISM 


301 


in  sympathy  with  the  new  order  of  things ' ;  and  it 
was  scarcely  politic  to  employ  spiritual  censures  for 
not  being  good  Calvinists  against  persons  who  had 
not  yet  become  Calvinists  at  all — for  the  jurisdiction 
claimed  was  to  be  unaccompanied  by  civil  penalties. 
Probably,  however,  Erastus  did  not  believe  in  this 
limitation,  for  he  declared  in  a  letter  that  the  disci- 
pline would  be  no  whit  better  than  the  Spanish 
Inquisition,  except  that  its  supporters  would  hardly 
dare  to  quaff  the  cup  of  human  blood  for  which  they 
seemed  to  be  thirsting^ 

At  first,  Erastus  tells  us,  he  had  accepted  the 
prevailing  views  as  to  excommunication,  as  a  divinely 
appointed  prerogative  of  the  Church,  but  when  he 
came  to  study  the  authorities,  ancient,  mediaeval,  and 
modem,  he  saw  that  the  reasons  given  were  flimsy ; 
then  betaking  himself  to  Scripture  he  found  no 
sanction  at  all  for  it  there,  and  the  texts  alleged  in 
its  support  patient  of,  and  indeed  needing,  a  different 
interpretation^. 

Having  thus  convinced  himself  that  the  belief 
in  ruling  elders  was  a  '  fond  thing  vainly  invented,' 

1  Explicatio,  preface.  Even  Sudhoff  (369)  in  this  respect 
appears  to  side  with^Erastus,  much  as  he  dislikes  his  principles: 
"  Die  Ungunst  der  Verhiiltnisse,  namentlich  die  aus  Unverstand 
und  Lauheit  hervorgehende  Opposition  in  den  Heidelberger  Kreisen 
des  Hofes,  der  Universitat  und  der  Biirgerschaft,  die  Haltung  der 
Ziiricher,  trugen  dabei  weitaus  die  grosste  Schuld,  wenn  auch 
zugegehen  werden  muss,  dass  eine  Kirche  welche,  wie  die  pfalzische, 
zumeist  durch  den  stoMtlichen Impuls  entstand  und  gehalten  wurde, 
in  der  ersten  Zeit  kein  giinstiger  Boden  filr  ein  schnelles  Gedeihen 
der  Disciplin  sein  kcmnte." 

=  B.  p.  73,  n.  1 ;  cf.  also  p.  65,  n.  2. 

^  Preface  to  Explicatio. 


302 


ERASTUS  AND  ERASTIANISM 


Erastus  was  ready  to  do  battle  for  the  liberty  of  the 
subject  and  of  the  prince,  in  a  word  for  the  laity, 
against  a  clericalist  party.  "New  presbyter  is  but 
old  priest  writ  large  "  is  the  import  of  Erastianism  as 
expounded  by  its  author,  save  that  he  would  class 
with  the  clergy  those  ecclesiastically-minded  laymen 
who  were  likely  to  be  eager  elders.  He  complained 
that  all  the  changes  at  Heidelberg  were  really  the 
work  of  a  camarilla  of  five  men,  foreigners,  who  had 
the  ear  of  the  prince  and  turned  him  to  their  own 
ends\  Of  these  the  most  important  were  Dathenus, 
a  Netherlander,  and  Olevianus,  a  refugee  from  Trier, 
who  arrived  in  1560,  and  at  once  raised  the  question 
and  wrote  to  the  Genevan  authorities  to  ask  advice. 
By  1562  he  was  able  to  report  that  the  Elector  re- 
cognised the  necessity  of  introducing  the  discipline. 
Apparently,  however,  the  matter  was  not  easy,  for 
he  speaks  of  the  opposition  of  those  who  cared  for 
human  wisdom,  by  which  is  probably  meant  Erastus, 
and  of  lawyers,  who  at  Heidelberg,  as  later  in  England, 
opposed  the  introduction  of  a  power  which  seemed  to 
trench  upon  their  own  prerogatives^. 

J  "  Consiliarii  omnes,  nobiles,  ignobiles,  populus,  aula,  adver- 
santur,  illi  tamen  fortiores  sunt  omnibus."    B.  76,  n.  3. 

"Clandestina  ineunt  iam  etiam  cum  prineipe  concilia,  qui  in 
hoc  totus  est,  ut  contra  voluntatem  flliorum,  conciliariorum, 
ministrorum,  subditorum  omnium,  exceptis  belgis  et  gallis,  nescio 
quam  disciplinam  instituat."    S.  341,  note. 

' '  Princeps  pergit  cudere  excommunicationis  f  ormulam  resistente 
toto  consilio  magno.    Sed  plus  potest  quinqueviratus."    S.  342. 

All  these  passages  are  from  letters  of  Erastus. 

^  Calvin's  remarks  are  notable:  "Si  tibi  cum  iureconsultis 
certandum  est,  scias  boo  hominum  genus  ubique  fere  esse  Christi 
servis  adversum,  quia  non  existimant  se  gradum  suum  posse  tueri, 


ERASTUS  AND  ERASTIANISM 


303 


The  steps  of  the  introduction  of  the  discipline 
were  as  follows :  The  Catechism  (1563)  laid  down 
the  principle  of  excommunication  for  the  impenitent 
and  hypocrites,  and  declares  the  excommunicate  to  be 
excluded  by  God  from  the  kingdom  of  Christ'.  An 
ordinance  expressing  the  same  principles  was  issued 
in  1563,  and  another  in  1564  went  a  little  further 
towards  organizing  the  discipline,  but  by  its  pro- 
visional character  and  through  the  final  authority 
reserved  for  the  central  civil  power  came  very  far 
from  meeting  the  views  of  Olevianus.  Then  in 
1568  there  came  to  Heidelberg  an  English  refugee, 
George  Wither,  who  had  left  this  country  owing  to 
the  Vestiarian  controversy.  Desirous  of  a  doctorate 
he  offered  a  thesis  on  the  subject  of  the  ceremonies, 
which  was  then  agitating  England.  The  theological 
faculty  had  no  mind  to  quarrel  with  Parker  and  the 
Anglican  Church,  and  so  they  forbad  Wither  to 
dispute  on  this  subject,  but  suggested  instead  that 
of  excommunication.  Erastus  bitterly  complains 
that  in  their  care  for  English  susceptibilities  the 
authorities  recked  little  of  setting  their  own  city  by 
the  ears^.    On  June  10  Wither  offered  his  theses 

si  qua  vigeat  ecclesia  autoritas."  Calvin  to  Olevianus ;  Opera,  xix. 
Ep.  3869. 

1  "Nach  dem  Befehl  Christi  diejenigen,  so  unter  dem  christ- 
lichen  Namen  unchristliche  Lehre  oder  Wandel  fiihren,  nachdem 
sie  etlichemal  briiderlich  vermahnet  sind  und  von  ihren  Irrthiimern 
oder  Lastern  nicht  abstehen,  der  Kirche  oder  denen  so  von  der 
Kirche  dazu  verordnet  sind,  angezeiget,  und  so  sie  sich  an  der- 
selben  Vermahnung  auch  nicht  kehren,  von  ihnen  dutch  Verbietung 
der  heiligen  Sacraments  aus  der  christlichen  Gemeine  und  von  Gott 
selbst  aus  dem  Reich  Christi  iverden  amgeschlossen.'^    Fr.  85. 

2  Preface  to  Explicatio. 


304 


ERASTUS  AND  ERASTIANISM 


in  support  of  the  discipline  of  excommunication  as 
existing  jure  divino  apart  from  the  magistrate,  and 
as  including  the  power  to  excommunicate  the  prince. 
Erastus  was  not  present,  but  one  of  his  friends  op- 
posed the  theses,  declaring  the  authority  claimed 
to  be  utterly  contrary  to  Scripture.  The  debate 
was  adjourned,  and  on  the  second  day  Erastus  was 
present.  What  the  grounds  of  opposition  were,  is 
indicated  in  the  notes,  taken  at  the  time,  of  Ursinus' 
replies  to  them^  We  gather  that  the  arguments 
used  were  much  the  same  as  those  of  Erastus'  theses, 
and  that  like  them  the  main  object  was  not  to 
magnify  the  civil  power,  but  to  oppose  the  discipline. 
The  discussion  did  not  stop  here.  Erastus  started 
working  up  commentaries  on  the  subject.  These 
he  reduced  later  to  the  form  of  100  theses.  His 
opponents  were  infuriated,  assailed  him  with  a  torrent 
of  abuse,  and  attempted  to  prevent  a  man  who  was 
not  a  divinity  professor  from  discussing  theological 
topics  I  Eventually  he  reduced  the  theses  to  seventy- 
five,  and  circulated  them  in  manuscript,  sending 
a  copy  to  Beza  at  Geneva.  The  latter  naturally 
disagreed  with  Erastus,  and  wrote  the  Tractatus 
pius  et  moderatus  de  Excommunicatione,  the  longest 
and  most  important  contemporary  reply  to  Erastus. 
Though  it  does  not  belie  its  title,  and  is  moderate 
and  respectful  in  tone,  it  is  uncompromising  for  '  the 
1  Opera,  i.  301—6. 

*  Cf.  Rutherford's  description  of  him :  "One  physician  who  in 
a  cursory  way  diverted  off  hia  road  of  medicine,  of  which  he  wrote 
learnedly,  and  broke  in  on  the  by  upon  the  deepest  polemics  of 
Divinity,  and  reached  a  rider's  blow  unawares  to  his  friends."  Jus 
Divinum,  Epistle  to  the  Reader. 


ERASTUS  AND  ERASTIANISM 


306 


prerogative  of  Christ,'  as  later  Presbyterians  called 
it,  and  against  laxity  towards  those  accused  of  l^se- 
majeste  to  the  kingdom  of  heaven.  Erastus  on  the 
other  hand  received  letters  of  sympathy  from  the 
Zwinglian  divines  at  Zurich,  more  especially  Bullinger 
and  Gwalther,  who  quarrelled  with  neither  side,  but 
declared  distinctly  their  general  approval  of  Erastus' 
views.  They  added  that,  while  not  desirous  of  con- 
demning other  churches,  they  would  never  be  tarn 
dementes  as  to  introduce  the  discipline  into  their  own 
city'. 

The  poor  Elector  was  overwhelmed  with  the 
controversy,  and  tried,  like  Laud  and  Charles  in  a 
later  controversy  between  Calvinists  and  Arminians, 
to  prevent  either  side  discussing  the  matter  further^ 
He  was  not  obeyed.  Soon  after,  in  1569,  he  took 
a  step  which  greatly  pleased  the  disciplinarians.  He 
married  the  widow  of  Bredenrode,  the  Belgian  noble, 


'  See  the  letters  published  at  the  end  of  the  Explicatio.  Bul- 
linger did  not  go  far  enough,  perhaps,  for  Erastus,  who  urged  the 
necessity  of  repressing  the  tyranny  of  these  men,  and  bade  him 
beware  lest  by  his  desire  to  be  charitable  to  two  Churches  he  should 
bring  ruin  upon  many.  Bullinger,  it  was  said,  had  admitted  that 
this  power  of  excommunication  did  more  than  anything  else  to 
ruin  Churches.  What  Bullinger  and  Gwalther  both  disliked 
was  the  confusing  of  ecclesiastical  discipline  with  the  Christian 
mysteries. 

^  "Gives  murmurant,  Princeps  afQigitur,  consiliarii  importunis 
supplicationibus,  et  tantum  non  enecantur.  Si  hactenus  omnino 
fuissem  cum  Belgis,  iam  cessarem,  quia  impie  tyrannice  impuden- 
tissime  rem  agunt."  Jezler  to  Ulmer.  B.  78,  n.  1.  (It  is  curious 
to  note  that  the  Arminian  controversy  in  Holland  was  apparently 
one  of  the  first  cases  in  which  the  writings  of  Erastus  were  largely 
used.) 

F.  20 


306 


ERASTUS  AND  ERASTIANISM 


familiar  to  all  readers  of  Motley.  This  event  led 
naturally  to  the  increased  influence  of  Dathenus  and 
his  party.  A  further  check  to  Erastus  was  the 
accusation  of  heresy  levelled  at  Simonius,  who  was 
driven  away.  Various  attempts,  described  as  in- 
credibly base,  were  made  to  intimidate  other  sup- 
porters with  exile,  and  not  all  were  unsuccessful. 
The  Elector  now  demanded  from  Ursinus  and  Zanchi 
their  written  opinions  on  the  subject.  Both  supported 
the  discipline,  although  Ursinus,  who  was  very  re- 
luctant to  be  drawn  into  the  discussion,  made  so 
many  qualifications  in  favour  of  the  civil  power, 
the  consent  of  which  was  always  to  be  necessary  to 
excommunications,  that  had  the  real  object  of  Erastus 
been  to  support  the  prince  rather  than  to  attack 
excommunication,  he  might  have  agreed  with  his 
adversary  quickly,  and  indeed  is  said  to  have  regarded 
this  opinion  with  some  sympathy  ^    Zanchi's  views 

^  Ursinus,  on  the  one  hand,  has  no  wish  to  give  power  to  an 
oligarchy  apart  from  the  Christian  community  or  the  prince.  But 
he  will  not,  with  Erastus,  accept  the  individual's  desire  to  receive 
the  sacrament  as  sut3Scient  evidence  of  repentance.  Explicatio 
Catechesis,  Opera,  i.  296  sqq.,  and  Judicium,  ni.  802  sqq.  He 
avers  further  that  any  discipline  of  the  kind  desired  cannot  be 
effective  without  the  magistrates'  assistance  (as  in  1646,  powers 
to  compel  attendance,  &c.,  would  be  needed). 

(a)  "Si  item  sic  intelligi  vellent,  quod  non  debeat  esse  aliquis 
peculiaris  senatus  in  Ecclesia,  qui  vel  excommunicare  etiam 
blasphemos,  vel  constituere  quidquam  possit,  invito  magistro  et 
populo  Christiano,  ego  cum  ipsis  non  contendero."  Ursinus  to 
Bullinger.    B.  159,  n.  1, 

ifi)  "Nam  ut  novus  senatus  constituatur,  qui  invitis  etiam 
praecipuis  Ecclesiae  membris  excommunicare  possit  aut  alia 
gerere  in  Ecclesia,  in  ea  sententia  nunquam  fui."  Ibid. 

(c)  "Nihil  in  hao  re  tentetur  nisi  tali  consensu  magistratuum 


ERASTUS  AND  ERASTIANISM 


307 


and  arguments  are  much  the  same  as  those  of  Beza'. 
But  the  disciplinarian  party  was  determined,  and 
Erastus  speaks  with  disgust  of  their  clandestine 
intrigues  with  the  Elector  to  induce  him,  against 
the  wishes  of  his  children,  his  counsellors,  and  all 
his  subjects  save  French  and  Belgian  refugees ^  to 
lay  upon  their  necks  a  burden  which  their  fathers 
were  not  able  to  bear,  in  the  support  of  a  view 
held  merely  by  men  fired  with  the  lust  of  power'. 
A  catastrophe  clinched  the  matter.  In  a  negotiation 
between  the  Prince  of  Transylvania  and  the  Empire 
for  aid  against  the  Turks,  it  had  come  out  that  Neuser 

ministrorum  et  populi  vel  totius  vel  potioris  partis  ut  nullae  neque 
politicae  neque  ecclesiasticae  turbae  inde  oriri  possint."  Ibid. 

(d)  "  Claves  non  sunt  ministrorum  tantum,  sed  totius  ecclesiae." 
Exp.  Cat.,  Opera,  i.  298.  Further,  the  whole  tone  of  Ursinus' 
'  opinion,'  insisting  so  strongly  on  the  need  of  the  consent  of  the 
whole  Church  as  a  preservative  against  tyranny,  is  on  a  par  with 
the  attitude  of  certain  believers  in  majority  rule,  who  ignore  the 
fact  that  a  majority  may  exercise  a  tyranny  just  as  much  as  an 
oligarchy. 

1  Opera,  vm.  App.  139.  Zanchi  gives  the  magistrate  the 
custody  of  both  tables,  the  duty  of  reforming  the  Church,  punish- 
ing idolatry,  securing  suitable  ministers,  but  condemns  of  course 
those  "qui  mutant  pro  suo  placito  religionem,  non  ut  servi  Dei 
sed  ut  Domini  ecclesiae  sese  gerunt."  De  Ecclesiae  Militantis 
Gubernatione,  vra.  555.  This  shews  how  much  power  all  in  those 
days  granted  the  prince.    Knox  would  have  said  the  same. 

*  "Non filios  non  conciliarios,  qui  ei,  uno  exceptoEhemio,  con- 
stantes  advertantur  omnes,  non  nobiles,  non  doctos,  non  plebeios, 
audit.  Episcopus  est  aulae  Dathenus."  S.  344.  "  Summa  est, 
Genevenses  et  Belgos  oportet  esse,  seu  velimus  seu  nolimus." 
lUd.  341. 

s  "Vestra  igitur  excommunicatio  nil  aliud  est  quam  inane 
figmentum  hominum  imperare  aliis  cupientium."  Erastus,  Con- 
firmatio,  m.  3,  p.  196. 

20—2 


308 


ERASTUS  AND  ERA8TIANISM 


and  Sylvanus  had  written  letters  expressive  of  anti- 
Trinitarian  and  even  Mahomedan  sympathies.  The 
scandal  brought  discredit  upon  Erastus,  and  the 
need  of  repression  was  felt  to  be  so  great,  that  in 
1570  the  discipline  was  definitely  established  by 
Electoral  ordinance,  though  even  this  ordinance  left 
the  ultimate  power  to  the  Elector.  Erastus  himself 
described  it  as  tolerable  \  Neuser,  it  should  be  said, 
escaped,  and  became  first  a  Mahomedan,  then  an 
atheist.  Sylvanus  was  tried.  There  were  different 
views  as  to  executing  him.  Beza  wrote  strongly  in 
favour  of  severity.  He  argued  that  repentance  was 
all  but  impossible,  and  even  if  it  were  not,  death 
would  be  the  only  sure  way  of  saving  him  from  like 
blasphemy  in  the  future.  The  case  dragged  on. 
Eventually  the  Elector  decided  for  execution,  in 
virtue,  as  he  said,  of  a  special  gift  of  the  Holy  Ghost, 
the  guide  into  all  truths  But  there  is  no  evidence 
to  connect  Erastus  with  these  heresies. 

The  discipline  was  not  popular.  Some  refused  to 
act  as  elders.  Those  who  did  act  quarrelled.  The 
masses  hated  the  system  and  rendered  it  ineffective, 
as  was  the  case  throughout  the  greater  part  of 
England  when  it  was  established  in  the  next  century. 
The  discipline  was  in  fact  Erastian  in  the  worst  sense 
of  the  word.  It  was  imposed  by  the  civil  power  at 
the  bidding  of  foreign  influence  within  and  without 
the  State,  against  the  wishes  of  the  great  majority 
of  the  people. 

»  B.  96,  n.  2. 

"Er  habe  auoh  den  H.  Geist,  welcher  in  dieser  Saohe  ein 
Lehrer  und  Minister  der  Wahrheit  sei."    B.  92,  n.  1. 


ERASTUS  AND  ERASTIANISM 


309 


In  1572  Erastus  was  again  Rector.  It  may  be 
that,  like  Gibbon's  hostility  to  the  Revolution,  of 
which  Mr  Bagehot  says,  "  the  truth  is,  he  had  arrived 
at  the  conclusion  he  was  the  sort  of  person  revolu- 
tionists are  likely  to  kill,"  that  of  Erastus  to  the 
discipline  was  inspired  by  a  feeling  that  it  would 
not  leave  him  long  unscathed.  For  he  too  was 
excommunicated  for  a  couple  of  years,  1574-6.  In 
1575  he  was  accused  of  anti-Trinitarian  tendencies, 
but  was  acquitted.  In  1576  the  death  of  the  Elector 
wrought  another  change.  A  Lutheran  reaction  under 
his  successor  followed,  the  hostile  parties  were  once 
more  united,  and  Erastus  resigned  his  professorship 
and  left  Heidelberg.  Had  he  been  an  Erastian  in 
the  ordinary  sense,  he  would  not  have  done  this. 
He  went  to  Basel,  where  he  was  treated  with 
distinction.  Having  lectured  on  ethics,  he  died 
in  1-583. 

Let  us  now  follow  the  fortune  of  his  works,  since 
it  throws  light  upon  their  meaning.  In  the  interests 
of  peace  his  own  contribution  to  the  controversy  and 
that  of  Beza  had  been  kept  in  manuscript.  Before 
Erastus  died,  however,  he  appears  to  have  changed 
his  mind.  But  this  is  not  certain.  In  1589  both 
Theses  and  Confirmatio  (the  reply  to  Beza)  were 
published  under  the  title  Explicatio  gravissimae 
quaestionis,  utrum  Excommunicatio,  quatenus  Re- 
Ugionem  intelligentes  et  amplexantes,  a  Sacramen- 
torum  usu  propter  admissum  f acinus  arcet ;  mandato 
nitatur  Divino,  an  excogitata  sit  ah  hominibus.  The 
publisher  called  himself  Baiocius  Sultaceterus,  and 
described  his  action  as  due  to  a  death-bed  wish  of 


310  ERASTUS  AND  ERASTIANISM 


Erastus  and  to  the  love  of  truth  ;  more  probably  it 
was  to  the  love  of  money.  The  place  of  publication 
was  given  on  the  title-page  as  '  Pesclavii.'  Beza  was 
annoyed,  and  declared  that  Erastus  would  never  have 
sanctioned  such  proceedings.  It  appeared  that  Pes- 
clavium  was  really  London,  that  the  real  editor  was 
Castelfeltro,  the  husband  of  Erastus'  widow,  and  that 
John  Wolf  was  the  real  publisher.  Now  the  disci- 
plinarian controversy  had  been  raised  some  years 
back  in  England  by  Cartwright  and  Travers.  Beza 
hinted  at  Whitgift's  being  at  the  bottom  of  a  publi- 
cation which  was  so  opportune'.  He  said  he  was 
not.  But  he  certainly  knew  about  it.  And  from  a 
statement  of  Selden  in  his  De  Synedriis,  there  would 
appear  to  be  evidence  that  Wolf  was  rewarded  by 
the  privy  council^.  There  can  be  little  doubt  that 
the  treatise  was  published  with  the  object  of  finally 
settling  the  disciplinarian  controversy  in  England. 
Hooker  shews  himself  well  acquainted  with  Erastus, 
and  goes  into  some  of  the  questions  he  raises.  In 
his  main  principles  about  Church  and  State  he  held 
Erastus',  not  Erastian,  views;  though  he  did  not 
share  his  disbelief  in  the  power  of  the  keys.  But 

'  It  was  opportune,  for  Baillie  speaks  of  Beza  as  afraid  to 
answer  Erastus'  book  (n.  227).  This  must,  of  course,  refer  to 
the  Confirmatio.  Cf.  also  pp.  265,  311.  And  the  whole  contro- 
versy of  the  Westminster  Assembly  is  a  proof  of  the  ingenuity  of 
the  arguments  of  Erastus.  Selden's  De  Synedriis  is  only  a  de- 
velopement  of  one  part.  Cf.  Just  Divinum,  or  CoUinges'  Responsio 
Bipartita,  in  both  of  which  Erastus  is  regarded  as  the  most 
formidable  opponent. 

^  Selden  gives  a  long  account  of  the  whole  matter  {De  Syn. 
I.  1016 — 21).  Cf.  what  Beza  says  in  his  preface,  and  also  the 
letters  in  Strype's  Whitgift,  i.  168,  and  App.  Ill,  302. 


ERASTUS  AND  ERASTIANISM 


311 


he  is  strongly  imbued  with  a  sense  of  the  iniquity 
of  excommunicating  the  prince. 

In  the  Arminian  troubles  in  Holland  the  name 
of  Erastus  was  invoked  ^  We  have  a  treatise  of 
Grotius  De  Imperio  Sicmmarum  Potestatum  circa 
Sacra,  1614,  said  to  be  entirely  Erastian.  Grotius, 
however,  like  Erastus,  is  guarded.  He  will  grant 
to  the  magistrate  no  power  to  contradict  the  word 
of  God,  to  promulgate  new  articles  of  faith,  or  to 
prohibit  preaching  or  the  sacramentsl  This  would 
assuredly  have  seemed  a  poor  and  ecclesiastical  view 
to  writers  like  Hobbes  and,  perhaps,  Selden.  Further, 
Grotius,  though  he  cites  many  supporters,  among 
them  Wolfgang  Musculus,  does  not  cite  Erastus,  nor 
do  the  views  of  the  two  about  excommunication 
agree.  The  debates  of  the  Westminster  Assembly 
naturalised  the  term  Erastianism  in  this  country. 
In  the  attempt  of  the  divines  to  draw  up  a  scheme 
of  uniform  Presbyterian  Church  government,  the 
greatest  difficulty  of  all  was  raised  by  the  claim  to 
the  power  of  the  keys.  The  English  Puritans  were 
strongly  Calvinist  in  the  modem  sense  of  the  term. 
But  they  were  loth  to  exert  a  power  which  they 
deemed  arbitrary  and  unlimited,  and  to  put  it  in 
the  hands  of  an  ecclesiastical  body.  The  Independents 
objected,  not  to  suspension  of  individuals  in  each 
congregation,  but  to  any  attempt  to  make  parishes 

1  Arminius  and  his  friends  leant  on  the  civil  power,  and  were 
much  attacked  for  having  appealed  to  the  superior  magistrate 
against  the  ecclesiastical  authority;  see  Articles  of  Synod  of 
Dort,  translated  by  Dr  Scott,  and  History  of  Preceding  Events, 
137  and  passim. 

2  Opera,  m.  214. 


« 


312 


ERASTUS  AND  ERASTIANISM 


unite  in  a  larger  organization  for  the  review  of 
decisions  ^  They  appear  to  have  been  willing  to 
admit  a  final  right  of  appeal  to  the  civil  magistrate. 
This  brought  them  very  near  to  the  Erastiansl 
Many  are  the  groans  of  Dr  Baillie  over  the  influence 
of  these  latter.    He  describes  them  as  follows  : 

"  In  the  Assembly  we  are  fallen  on  a  fashious 
proposition,  that  has  keeped  us  divers  dayes,  and 
will  do  so  divers  more,  coming  upon  the  article  of 
the  church  and  the  church-notes  to  oppose  the 
Erastian  heresy,  which  in  this  land  is  very  strong, 
especially  among  the  lawyers,  unhappy  members  of 
this  Parliament.  We  find  it  necessary  to  say  that 
'  Christ  in  the  New  Testament  had  institute  a  Church 
government  distinct  from  the  Civil,  to  be  exercised 
by  the  officers  of  the  church,  without  commission 
from  the  magistrate.'  None  in  the  Assembly  has 
any  doubt  of  this  truth  but  one  Mr.  Coleman,  a 
professed  Erastian,  a  man  reasonably  learned  but 
stupid  and  inconsiderate,  half  a  pleasant,  and  of 
small  estimation.  But  the  lawyers  in  the  Parlia- 
ment making  it  their  work  to  spoil  our  Presbyterie, 
not  so  much  upon  conscience  as  upon  fears  that  the 
Parliament  spoil  their  mercat  and  take  up  most  of 
their  coi;ntry  pleas  without  law,  did  blow  up  the 

1  ' '  The  proposition  we  sticl?  on  is  that  no  particular  congrega- 
tions may  be  under  the  government  of  one  Classical  Presbytery." 
Baillie,  n.  139  (1644). 

*  Neal's  remarks  are  notable.  Except  that  he  calls  Erastus 
a  divine,  he  gives  a  very  fair  description  of  his  teaching.  The 
pastoral  office,  he  says,  was  according  to  Erastus  only  persuasive, 
like  that  of  a  professor  of  the  sciences  over  his  students,  without 
any  power  of  the  keys  armexed. 


ERASTUS  AND  ERASTIANISM 


313 


poor  man  with  much  vanity ;  so  he  is  become  their 
champion,  to  bring  out  in  the  best  way  he  can 
Erastus's  arguments  against  the  proposition,  for  the 
contentment  of  the  Parliament.  We  give  him  a  free 
and  fail-  hearing;  albeit,  we  fear,  when  we  have 
answered  all  he  can  bring  and  have  improved  with 
undeniable  proofs  our  position,  the  Houses  when  it 
comes  to  them  shall  scrape  it  out  of  the  Confession ; 
for  this  point  is  their  idol.  The  most  of  them  are 
incrediblie  zealous  for  it ;  the  Pope  and  the  King 
were  never  more  earnest  for  the  headship  of  the 
Church  than  the  plurality  of  this  Parliament.  How- 
ever they  are  like  for  a  time  by  violence  to  carry  it, 
yet  almost  all  the  ministry  are  zealous  for  the  Pre- 
rogative of  Christ  against  them.  We  are  at  this 
instant  yoked  in  a  great  and  dangerous  combat  for 
this  very  thing.  Often  we  have  been  on  the  brink 
to  set  up  our  Government,  but  Satan  to  this  day 
hath  hindered  us.  The  ministers  and  elders  are  not 
willing  to  set  up  and  begin  any  action  till  they  may 
have  a  law  for  some  power  to  purpose;  all  former 
ordinances  have  been  so  intolerably  defective  that  they 
could  not  be  accepted.  The  Erastian  and  Independent 
party  joining  together  in  the  Houses  to  keep  off  the 
Government  so  long  as  they  were  able,  and  when  it 
was  extorted,  to  make  it  so  lame  and  corrupt  as  they 
were  able ;  yet  at  last  yesterday  an  Ordinance  came 
forth  to  supply  the  defects  of  all  the  former,  that  so 
without  much  further  delay  we  might  go  to  work. 
We  laboured  so  much  as  we  were  able  before  it  came 
out  to  have  it  so  free  from  exceptions  as  might  be, 
but  notwithstanding  of  all  we  could  do,  it  is  by  the 


314 


ERASTUS  AND  ERASTIANISM 


malignity  of  the  forementioned  brethren  in  evil  so 
filled  with  grievances,  that  yet  it  cannot  be  put  in 
practice.  We  for  our  part  mind  to  give  in  a  remon- 
strance against  it ;  the  Assembly  will  do  the  like ; 
the  City  Ministers  will  give  the  third ;  but  that 
which  by  God's  help  may  prove  most  effectual  is 
the  zeal  of  the  City  itself  Before  the  ordinance 
came  out,  they  petitioned  against  some  materials 
of  it.  This  both  the  Houses  voted  to  be  a  breach  of 
their  privilege,  to  offer  a  petition  against  anything 
that  is  in  debate  before  them  till  once  it  be  con- 
cluded and  come  abroad.  This  vote  the  City  takes 
very  evil.  It's  likely  to  go  high  betwixt  them.  Our 
prayers  and  endeavours  are  for  wisdom  and  courage 
to  the  City.  I  know  to  whom  this  matter  has  cost 
much  labour.  The  Independents  have  the  least  zeal  to 
the  truth  of  God  of  any  men  we  know.  Blasphemous 
heresies  are  now  spread  here  more  than  ever  in  any 
part  of  the  world.  Yet  they  are  not  only  silent,  but 
are  patrons  and  pleaders  for  liberty  almost  to  them 
all.  We  and  they  have  spent  many  sheets  of  paper 
upon  the  toleration  of  their  separate  churches.  At 
the  last  meeting  we  concluded  to  stop  our  paper- 
debates,  and  on  Thursday  next  to  begin  our  verbal 
disputation  against  the  lawfulness  of  their  desired 
separation.  When  we  have  ended,  the  Houses  will 
begin  to  consider  this  matter.  The  most  there  and 
in  the  army  will  be  for  too  great  a  liberty ;  but  the 
Assembly,  the  City,  and  the  body  of  all  the  ministry 
in  the  Kingdom  are  passionately  opposite  to  such  an 
evident  breach  of  the  Covenant'." 

1  Baillie,  Journal,  ii.  360,  1  (1646). 


ERASTUS  AND  ERASTIANISM 


315 


Mr  Gillespie  in  his  Aaron's  Rod  Blossoming 
(table  of  Contents)  describes  the  genesis  of  the 
party  thus : 

"The  Erastian  error  not  honestis  parentibus  nati. 
Erastus  the  midwife,  how  engaged  in  the  business. 
The  breasts  that  gave  it  suck  profaneness  and  self- 
interest.  Its  strong  food  arbitrary  government.  Its 
tutor  Arminianism.  Its  deadly  decay  and  consump- 
tion, whence  it  was  ?  How  ill  it  hath  been  harboured 
in  all  the  reformed  churches  ?  How  stifled  by  Erastus 
himself?  Erastianism  refuted  out  of  Erastus.  The 
divers  who  have  appeared  against  this  error.  How 
the  controversy  was  lately  revived." 

Rutherford  occupies  the  greater  part  of  Jus  Di- 
vinum  with  an  able  answer  to  Erastus,  and  thinks 
that  in  answering  him  he  has  fully  answered  Prynne's 
objections^  He  describes  the  attempts  of  the  Eras- 
tian party  thus :  "  It  is  not  an  enriching  spoil  to 
pluck  a  rose  or  flower  from  the  crown  of  the  Prince 
of  the  Kangs  of  the  earth.  Diamonds  and  rubies 
picked  out  of  the  Royal  Diadem  of  Jesus  Christ 
addeth  but  a  poor  and  sorry  lustre  to  earthly  supre- 
macy ;  it  is  baldness  instead  of  beauty."  He  makes 
use  of  the  argument  to  be  made  famous  by  Pascal, 
"  In  things  doubtful  conscience  hath  refuge  to  the 
surest  side.  And  Christian  rulers  would  not  do  well 
to  venture  upon  Eternity,  Wrath,  the  Judgement  to 
come,  confiding  on  the  poor  plea  of  an  Erastian  dis- 
tinction, to  encroach  upon  the  Prerogative  Royal  of 
Jesus  Christ." 

The  arguments  are  much  the  same  as  in  the  case 

1  Epistle  to  the  Reader. 


316 


ERASTUS  AND  ERASTIANISM 


of  Heidelberg,  though  there  was  a  great  deal  more 
here  about  the  civil  magistrate ;  but  Collinges  in  his 
Responsio  Bipartita  declares  his  opponents'  argu- 
ments to  be  all  derived  from  Erastus,  "the  first 
worker  in  that  sort  of  brass \"  The  extension  of 
the  term  Erastian  to  mean  not  opponents  of  excom- 
munication, but  upholders  of  the  view  that  the 
magistrate  could  order  religion  as  he  liked  and 
command  obedience,  was  due  to  this  controversy  I 
Now  of  course  its  original  significance  has  been 
largely  forgotten. 

The  Explicatio  was  reprinted  in  1649  at  Amster- 
dam. The  theses  (not  the  Gonfirmatio)  were  trans- 
lated into  English  in  1659  under  the  title  of  The 
Nullity  of  Church  Censures.  Another  translation 
appeared  in  1682. 

In  our  own  day  the  disruption  of  the  Church  of 
Scotland  caused  Dr  Lee  to  republish  in  1844  the  old 
translation,  with  an  elaborate  preface  of  his  own, 
vindicating  Erastus  from  the  charge  of  Erastian- 
ism  as  commonly  understood,  and  the  Church  of 

1  p.  20. 

^  It  is  fair  to  say  that  Eutherford  regards  Erastus  as  more,  not 
less  Erastian  than  his  followers,  but  I  think  he  does  not  reflect 
(1)  that  Erastus'  remarks  as  to  the  civil  magistrate  were  obiter 
dicta;  (2)  that  the  power  he  gives  him,  as  to  sacra,  would  go  to 
any  Christian  under  a  doctrine  of  the  priesthood  of  the  laity,  held 
as  strongly  as  Erastus  undoubtedly  held  it;  (3)  Erastus  always 
contemplates  the  magistrate  not  as  changing  religion  at  his  will, 
but  as  the  orthodox  head  of  an  orthodox  church ;  (4)  Erastus 
does  not,  as  Rutherford  thinks  (513),  ever  say  that  it  is  the  magis- 
trate's business  to  excommunicate  apostates  or  any  one  else.  He 
merely  says  that  his  objections  to  the  discipline  do  not  apply  to 
them. 


BBASTUS  AND  ERASTIANISM  317 


Scotland  from  being  either  Erastian  or  a  supporter 
of  Erastus. 

Having  thus  detailed  the  relevant  facts,  I  proceed 
to  a  few  points  which  may  serve  towards  the  elucida- 
tion of  the  problem  with  which  I  started,  How  far 
was  Erastus  an  Erastian  ?  But  a  definition  of 
Erastianism  is  necessary.  Perhaps  the  theory  is 
expressed  in  the  barest  and  therefore  most  complete 
form  by  Selden  in  the  words  "Whether  is  the  Church 
or  the  Scripture  the  judge  of  religion  ?  In  truth 
neither,  but  the  StateK"  Such  a  view  is  clear  enough. 
It  places  all  truth  at  the  mercy  of  the  civil  power 
and  utterly  denies  any  rights  of  conscience  to  either 
individual  or  church.  It  places  the  claims  of  ex- 
pediency above  those  of  reason.  It  makes  political 
convenience  the  sole  test  of  belief  And  it  is  such 
a  view  as  this  that  gives  its  locus  standi  to  the 
hierarchical  theory  of  the  State ;  although,  indeed, 
it  might  perhaps  more  fairly  be  said  that  it  was  the 
hierarchical  theory  and  its  consequences  which  pro- 
duced Erastianism  by  way  of  repulsion.  Still,  the 
great  argument  in  favour  of  theories  of  ecclesiastical 
supremacy,  whether  propounded  by  Jesuits  or  Presby- 
terians or  Fifth  Monarchy  Men,  is  always  the  same. 
In  an  age  in  which  uniformity  in  religion  is  the 
political  ideal,  the  spiritual  organization  must  claim 
a  deciding  view  in  matters  of  faith,  or  religious  belief 
will  become  merely  a  question  of  political  convenience. 
The  only  safeguard  for  truth  is  a  claim,  which  seems 
preposterous  to  those  living  in  a  world  where  toleration 
1  Table  Talk,  Op.  ni.  2067 ;  cf .  also  2016. 


318 


ERASTUS  AND  ERASTIANISM 


has  solved  the  problem.  Theories  of  ecclesiastical 
supremacy  may  be  bad,  but  they  are  better  than  the 
view  which  makes  religion  or  atheism  a  mere  political 
instrument,  the  shuttlecock  of  State  or  private  in- 
terests. They  are,  in  fact,  the  form  which  a  regard 
for  the  rights  of  conscience  takes  in  an  age  in  which 
persecution  is  regarded  as  a  duty.  The  Roman 
Empire  had  made  of  religion  a  mere  political  engine. 
In  the  inevitable  reaction  the  Christian  Church  was 
led  to  put  forth  a  claim  nearly  equally  indefensible 
to  dominate  the  civil  authority.  Then  the  Reforma- 
tion witnessed  the  uprising  of  the  laity  against  this 
view.  And  nearly  all  supporters  of  change  were 
willing  to  allow  to  the  civil  ruler  more  power  in  the 
direction  of  taking  the  initiative^  in  reformation  than 
our  own  age  would  be  disposed  to  do.  Some  went 
further.  The  Leviathan  exhibits  triie  Erastianism  in 
its  most  full-blown  form.  Hobbes  regards  religion  as 
under  the  absolute  control  of  the  State,  which  for  its 
own  ends  may  establish  and  prohibit  what  forms  it 
pleases,  and  demand  not  only  on  loyal,  but  on  moral 
grounds  the  obedience  of  every  member.  The  con- 
science is  in  fact  bound  to  any  religion  the  State 

1  Cf.  even  Knox'  Letter  to  Queen  Regent  Mary,  Works,  iv.  433; 
and  also  Second  Book  of  Discipline,  x.  7,  in  Calderwood,  iii.  545. 
Knox,  like  the  Pope,  was  willing  to  exalt  the  civil  power,  so  long 
as  it  could  be  used  as  an  instrument.  A  great  deal  of  so-called 
Erastianism  is  little  more  than  the  extravagant  support  of  the  one 
power  that  could  carry  through  or  maintain  the  particular  religious 
views  of  the  writer;  as  a  later  writer  says,  "Only  this  honour  the 
Presbyterians  give  to  their  magistrates,  they  must  be  the  execu- 
tioners of  their  judgements  to  hang  whom  they  condemn,"  and 
cf.  the  Confession  of  Puritan  exiles  in  Holland. 


ERASTUS  AND  ERASTIANISM 


319 


imposes.  It  is  true  Hobbes  makes  one  reservation, 
in  which  a  merely  passive  obedience  is  permitted, 
but  it  concerns  only  the  case  where  the  State  denies 
the  Incarnation,  and  is  besides  so  contemptuous,  that 
he  leaves  little  doubt  that  he  himself  would  regard 
conformity  to  any  and  every  conceivable  State- 
imposed  religion  or  negation  as  a  moral  duty.  The 
king  is  at  once  priest  and  bishop.  Bishops  have  no 
right  to  call  themselves  so  by  divine  permission,  and 
the  clergy  ought  to  preach  of  nothing  but  the  duty 
of  civil  obedience. 

But  perhaps  the  simpler  definition  of  Erastianism 
as  the  theory  that  religion  is  the  creature  of  the 
State  may  serve ;  and  I  suppose  that  no  one  will 
deny  that  the  word  as  commonly  employed  means  at 
least  this  much.  Now  did  Erastus  teach  this  or  not  ? 
If  not,  was  his  doctrine  at  all  an  approximation  to  it  ? 
And  how,  then,  did  the  theory  become  attached  to  his 
name  ?  To  the  first  of  these  questions,  I  believe  that 
the  answer  is  in  the  negative ;  to  the  second  an 
affirmative,  although  opinions  will  probably  differ  as 
to  how  far  such  approximation  extends.  And  the 
third  can  be  answered  from  the  history  of  the  con- 
troversies mentioned  above. 

(1)  We  must  always  remember  that  Erastus  did 
not  write  directly  in  support  of  the  State,  but  had 
the  object  of  crying  down  excommunication.  Any 
views  he  expresses  as  to  the  functions  of  the  magistrate 
are  mere  obiter  dicta  introduced  in  support  of  the 
main  position.  He  is  bound  in  fact  to  shew  that 
morality  will  not  suffer,  if  his  views  be  adopted. 
And  so  he  goes  on  to  say  that  excommunication  is 


320 


ERASTUS  AND  ERA8TIANISM 


not  only  unscriptural  and  a  usurpation,  but  that  the 
magistrate  can  effect  all  that  it  aims  at ;  not  that 
he  himself  can  excommunicate.  His  argument  runs 
on  these  lines:  (a)  Excommunication  was  not  practised 
among  the  Jews ;  (6)  it  has  no  authority  in  the  New 
Testament ;  (c)  in  a  state  where  every  one  is  of  the 
same  opinion,  {not  excommunication,  but)  all  coercive 
jurisdiction  belongs  to  the  magistrate  alone.  The 
argument  is  of  the  character  of  the  times,  and  there 
is  no  need  to  go  into  it  at  length.  The  alleged 
instances  among  the  Jews  are  disposed  of  The 
Sanhedrin^  is  shewn  to  be  a  political  not  merely 
a  religious  body,  and  to  have  had  coercive  power. 
This  point  was  elaborated  by  Selden  in  the  De 
Synedriis\  The  passages  from  the  New  Testament 
cited  as  favouring  the  discipline  are  then  examined 
and  explained.  The  most  important  of  these  is 
Matthew  xviii.  17.     Erastus  argues  that  Christ's 

1  The  Disciplinarians  based  their  argument  partly  on  the  as- 
sumed fact  that  the  powers  of  the  Sanhedrin  were  continued  in 
the  Church,  and  that  they  were  essentially  ecclesiastical.  Both 
Bancroft  in  his  Survey  of  the  Pretended  Holy  Discipline  and 
Bilson  in  The  Perpetual  Government  of  ChrisVs  Church  appear 
to  have  held  the  same  views  as  Erastus  on  the  matter. 

^  Baillie  was  very  anxious  to  have  him  answered,  e.g.  "The 
Erastian  party  in  the  Parliament  is  stronger  than  the  Independent, 
and  is  like  to  work  us  much  woe.  Selden  is  their  head.  If 
L'Empereur  would  beat  down  this  man's  arrogancy,  as  he  very 
well  can,  to  show  out  of  the  Kabbins,  that  the  Jewish  State  was 
diverse  from  their  Church,  and  that  they  had  the  censure  of 
excommunication  among  them,  and  a  double  Sanhedrin,  one 
civil,  another  ecclesiastical ;  if  he  would  confound  him  with 
Hebrew  testimonies  it  would  lay  Selden's  vanity,  who  is  very 
insolent  for  his  Oriental  literature  "  (ii.  277).  Gillespie  was  also 
very  strong  on  this  point. 


ERASTUS  AND  ERASTIANISM 


321 


command  has  nothing  to  do  with  excommunication. 
It  refers  to  private  wrongs.  The  aggrieved  party  is 
to  go  either  to  the  Sanhedrin  or  to  a  similar  body 
acting  in  a  non-Christian  State  as  a  court  of  arbitra- 
tion. If  that  fails,  the  erring  brother  is  to  be  treated 
as  a  heathen  and  a  publican.  This  means  not  that 
he  is  excommunicate,  but  that  an  action  in  the  State 
courts  may  be  brought  against  him.  He  will  not  act 
as  a  Christian,  let  him  therefore  be  treated  merely 
as  a  citizen ^  St  Paul's  delivering  over  to  Satan  of 
the  erring  Corinthian  is  also  discussed.  This  is  in- 
terpreted as  a  prayer  for  his  removal  from  this  world, 
not  as  excommunication^.  Lastly,  Erastus  declares 
that  in  a  Christian  State  the  magistrate  is  the  proper 
person  to  punish  all  offences.  He  is  not  to  excom- 
municate. That  would  be  to  give  him  a  purely 
religious  function  ^  He  is  merely  to  act  on  a  law 
inspired  by  religious  principles.  Erastus  does  not 
touch  doctrine,  and  therefore  gives  the  magistrate 

1  This  argument  appears  in  Musculus,  Loci  Communes,  De 
Magistratibus,  p.  631,  Ed.  1611. 

^  Lightfoot,  Horae  Hebraicae,  shares  Erastus'  views  on  many 
of  these  points. 

^  Cranmer  indeed  does  this  in  his  Questiones,  N.  0.  116,  Re 
mains  and  Letters,  117.  "A  bishop  or  a  priest  by  the  Scripture 
is  neither  commanded  nor  forbidden  to  excommunicate,  but  where 
the  laws  of  any  region  giveth  him  authority  to  excommunicate, 
there  they  ought  to  use  the  same  in  such  crimes  as  the  laws  have 
such  authority  in ;  and  where  the  laws  of  the  region  forbiddeth 
them,  there  they  have  none  authority  at  all ;  and  they  that  be 
no  priests  may  also  excommunicate,  if  the  law  allow  them  there- 
unto." But  to  the  whole  of  this  is  added:  "This  is  mine  opinion 
and  sentence  at  the  present,  which  I  do  not  temerariously  define, 
and  do  remit  the  judgement  thereof  wholly  unto  your  majesty." 

P.  21 


322 


ERASTUS  AND  ERASTIANISM 


no  power  over  truth.  For  he  says  that  he  is  only 
considering  the  case  where  prince  and  people  are  all 
of  the  same  religion,  and  that  the  true  one.  All  this 
appears  to  me  to  shew  that  the  views  of  Erastus  are 
not  relevant  to  modem  Church  controversies,  which 
take  place  in  a  State  which  recognizes  every  religion, 
and  which  presuppose  a  '  magistrate '  (Parliament) 
composed  of  persons  of  a  thousand  conflicting  views. 
It  is  only  through  the  ignoring  the  two  provisoes : 
(1)  that  the  true  religion  is  supposed  to  be  established 
and  none  other  allowed  in  the  State ;  (2)  that  the 
magistrate  has  no  power  to  transgress  the  Word  of 
God :  that  it  is  possible  to  identify  the  views  of 
Erastus  with  those  of  Hobbes  or  Selden.  His 
objection  is  clearly  to  two  governing  coercive 
authorities  in  one  State. 

"  Ut  in  rebus  profanis  curandis  ei  non  licet  ter- 
minos  et  fines  aequitatis,  iusticiae,  ac  honestatis,  hoc 
est  praescriptionem  legum  et  statutorum  Reipub- 
licae,  transcendere ;  sic  in  disponendis  et  ordinandis 
rebus  sacris  vel  ad  cultum  Divinum  pertinentibus 
longe  minus  ei  licet  uUa  in  parte  a  praescripto  verbi 
Dei  discedere :  quod  tanquam  regulam  in  omnibus 
debet  sequi,  ab  eoque  nusquam  vel  latum  pilum 
deflectere.  Summa  est,  Magistratum  in  Christiana 
Republica  unicum  esse  cui  a  Deo  commissa  sit  guher- 
natio  externa  rerum  omnium  quae  vel  ad  civilem  vel 
ad  piam  et  CJu-istianam  vitam  pertinent ;  ius  et  au- 
toritatem  imperandi  ac  ius  dicendi  neque  ministris 
neque  aliis  ullis  concessum  esse.  Intelligi  hoc  debet 
de  ea  Republica  dictum,  in  qua  Magistratus  et  sub- 
diti  eandem  projitentur  religionem,  eamque  veram. 


ERASTUS  AND  ERASTIANISM 


323 


In  hac  dico  duas  distinctas  iurisdictiones  minime 
debere  esse.  In  alia,  in  qua  videlicet  Magistratus 
falsam  tuetur  sententiam,  certo  quodam  modo  tole- 
rabilis  videri  fortasse  possit  divisio  rationum'." 

"  Oppugno  tantum  indicium  de  moribus,  quod 
hodie  Ecclesiasticum  nominant,  distinctum  a  iudicio 
politici  magistratus.  Nempe  duas  iurisdictiones  sive 
duo  discrirainata  de  moribus  indicia  publica  et  ex- 
terna nego  in  una  Republica  esse  oportere,  cui  pius 
Magistratus  a  Deo  praepositus  estl" 

Is  this  substantially  different  from  Elizabeth's 
claim  for  herself  in  The  Admonition  to  simple  men 
deceived  by  the  malicious  ?  Erastus'  magistrate  is  in 
fact  merely  a  sovereign,  "over  all  persons  and  in  all 
causes  within  his  dominions  supreme,"  no  more^. 
Further  he  says  that  in  matters  of  taith  the  magis- 
trate will  of  course  consult  the  leaders  of  theological 
opinion,  who  will  teach  him  what  is  or  is  not  the 
Word  of  God.  And  he  admits  it  may  be  well  that 
for  moral  offences  he  may  delegate  power  to  bodies 
composed  at  least  partly  of  ecclesiastics  or  of  persons 
elected  by  churches'*,  who  shall  inquire  into  such 
offences  and  bring  the  offenders  to  justice.  But  he 
objects  to  the  assumption  of  jurisdiction  by  the 
spiritual  authority,  which  he  deems  essentially  non- 

1  Confirmatio,  m.  1,  pp.  161-2.  In  another  place  he  says 
"Verbum  Dei  et  Bacramenta  nuUi  potestati  subiiciuntur." 

2  Ibid.  TV.  1. 

^  "  Non  hoc  dico,  Deum  voluisse  magistratum  sacrificare  atque 
alia  huiusmodi,  quae  sacerdotibus  imperata  solis  fuerant,  facere, 
sed  illud  assero  Deum  soli  magistratui  concredidisse  curam  et 
gubemationem  tarn  sacrarum  quam  profanarum  rerum."  Ibid. 
m.  1,  p.  163.  •>  Ibid.  172. 


21—2 


324 


ERASTUS  AND  ERASTIANISM 


political'.  His  opponents  claimed  without  justice 
that  their  discipline  in  no  way  usurped  the  power 
of  the  State.  He  retorted  by  asking  them  why,  if 
this  was  so,  they  required  an  act  of  State  to  intro- 
duce their  discipline.  He  also  objects  to  any  attempt 
to  introduce  it  among  an  unwilling  population  as  too 
'Erastian'  in  our  sense,  and  as  depriving  the  Christian 
community  of  its  rights^  They  made  the  cardinal 
error  of  all  clericalist  parties  in  arguing  that  their 
decisions,  being  concerned  with  religious  matters, 
were  of  a  radically  different  order  from  those  of  other 
men.  They  claimed  infallibility.  "An  apud  solos  Allo- 
broges  homines  non  falhmtur  in  iudicando?"  asks 
Erastus  pertinently  I  Beza's  argument  was  that  the 
sentence  of  the  Church  was  merely  declaratory, 
announcing  upon  earth  a  sentence  of  exclusion  from 
Paradise  previously  passed  in  an  invisible  court 
above  ^  This  in  his  view  differentiated  the  decisions 
of  ruling  elders  from  those  of  earthly  courts.  Erastus 
saw  through  this  (unconscious)  sophistry.    He  saw 

1  Cf.  the  description  of  Baxter's  views  in  Calamy's  Life  of 
Baxter,  and  his  reasons  for  disliking  the  Presbyterians,  Reliquiae 
Baxterianae,  142,  3. 

2  "  Si  verum  est  Christum  nomine  Ecclesiae  intellexisse  totam 
multitudinem,  falsum  est  magistratui  hoc  permitti,  ut  nolente 
Ecclesia  hos  ei  Presbyteros  imponat.  Quanquam  enim  Magis- 
tratus  praecipuum  est  Ecclesiae  memhrum,  tamen  ipsismet  inter- 
pretibus  non  iussit  Christus  membro  primario  et  principi  judicare, 
sed  Ecclesiae  toti :  in  qua  non  facit  alios  aliis  potentiores  quod  ad 
banc  rem  attinet."    Cunjlrmatio,  vi.  1,  p.  329. 

'  Confirmatio,  in.  4,  p.  223. 

■*  In  excommunicating  "  Deum  ipsum  constituimus  et  presby- 
terii  et  huius  iudicii  auctorem,  cuius  dumtaxat  minister  et  interpres 
fit  presbyterium."  Excommunication  is  really  the  supplement  to 
an  act  previously  done  in  heaven:  "  ut  videlicet  nihil  aliud  si 


ERASTUS  AND  ERASTIANISM 


325 


that  the  attempt  to  judge  whether  a  man  desirous 
of  communicating  was  sincere  or  no  in  repentance 
involved  an  impossible  claim  to  a  knowledge  of 
motive,  and  was  therefore  in  this  respect  an  encroach- 
ment on  the  divine  justice,  no  less  than  it  was  in 
another  a  usurpation  of  human.  It  judged  motives, 
i.e.  it  claimed  infallibility ;  it  affected  reputation,  i.e. 
it  had  a  civil  aspects  The  fact  is  that  the  concep- 
tion of  the  Church  entertained  at  that  time  by 
Presbyterians  and  Papalists  alike  is  largely  political, 
just  as  rigid  predestinarianism  is  the  theory  of  legal 
sovereignty  applied  to  the  actions  of  God.  The  Deity 
of  Calvinism  is  Hobbes'  Leviathan,  with  power  un- 
checked by  law,  justice  or  conscience.  To  both 
Papalists  and  Presbyterians  the  Church  is  a  State,  the 
State  indeed — though  not  all  would  have  admitted 
so  much  -.  But  Erastus  saw  the  dangers  of  the  system 

excommunicatio  in  terris  quam  declaratio  alterius  occultioris  factae 
in  coelis,  ex  qua  nimirum  merito  colligatur  eum  qui  in  coelis  eo 
quidem  tempore  non  approbatur,  indignum  esse  qui  inter  fideles 
in  terris  censeatur:  quae  posterior  etiam  declaratio  in  ten'is  facta, 
rata  est  in  coelis."  Beza,  TractaUts  Moderatus,  4.  "Nos  autem 
...tarn  credimus  rata  esse  in  coelis,  quam  Christum  seimus  regnare 
in  eorum  ministerio  quos  ecclesiae  suae  hie  regendae  praefecit; 
neque  haec  legitima  vero  presbyterii  iudicia  secus  arbitramur 
reformidanda,  quam  si  filius  ipse  Dei  aeternus  ilia  ore  suo  pro- 
nuntiaret."    Ibid.  8. 

'  "Nos  enim  de  solis  illis  loquimur,  ut  saepe  monui,  qui 
cupiunt  cum  Deo  reconciliari ;  at  hoc  unum  contendimus,  non 
esse  a  Deo  institutum  Presbyterium,  quod  de  cordibus  hominum 
dicentium  se  poenitere  iudicet,  verene  an  false  dicant;  atque  sic 
vel  ad  sacramenta  admittant,  vel  ab  eisdem  removeant."  Con- 
firmatio,  u.  1,  p.  152.    Cf.  also  i.  4. 

^  The  developed  doctrine  of  Presbyterianism  does  admit  the 
theory  of  the  two  kingdoms ;  but  this  was  hardly  the  position  of 
either  Calvin  or  Knox.    Cf .  the  lecture  on  Ins  Divimtm  in  1646. 


326 


ERASTUS  AND  ERASTIANISM 


it  was  proposed  to  introduce*.  He  saw  the  power 
which  the  right  of  excomnmnication  would  give  to 
ecclesiastical  oligarchies  in  a  community  all  of  one 
faith.  Excommimication  in  our  heterogeneous  modem 
world  would  have  far  less  etfect,  although  even  here 
it  might  affect  a  man's  business  prospects  and  be 
therefore  a  proper  subject  for  the  coui'ts^  to  investi- 
gate. But  in  a  society  of  uniform  religious  belief,  if 
practised  as  had  been  desired,  it  would  have  been 
defamation  of  character  raised  to  the  level  of  a 
divine  ordinance  and  relieved  of  every  civil  penalty. 
To  claim  such  a  power  was  certainly  to  claim  what 
lay  within  the  magistrate's  functions,  unless  there 
was  appeal  to  him,  and  that  was  the  thing  most 
disliked.  There  can  be  no  reason  why  a  preacher 
who  spoke  of  certain  individuals  in  his  sermons 
should  not  suffer  the  pains  and  penalties  of  slander, 
if  his  allegations  were  unjustifiable.  Excommunica- 
tion was  the  same  sort  of  thing  on  a  grander  scale. 
It  is  not  calculated  to  advance  a  man's  prospects  in 
this  life  to  tell  his  neighbours  that  his  prospects  are 

*  He  regards  it  as  on  a  level  with  Papal  oppression.  "Haec 
enim  vere  fortis  Deus  fuit,  qui  omnes  Eeges  et  principes,  omne 
robur,  omnes  conscientias,  ipsam  etiam  sacrosanotam  seripturam, 
Pontifieis  Romani  pedibus  subiecit.  At  nos,  inquies,  aliter  in- 
stituimus,  Pontificum  factum  non  probamus.  Audio  quidem  hoc 
dici,  ml  contrarium  video  et  experior.  Permulta  alia  in  Ponti- 
ficibus  recte  reprehendimus ;  at  eadem  deinde  fecimus  et  facimus, 
postquam  nobis  paulum  confirmati  videmur.  Nolo  exempla  dis- 
sipatarum  Ecclesiarum,  iniquorum  iudiciorum,  et  aliarum  con- 
fusionum  atque  malorum,  quae  aetate  nostra  ex  hac  vel  sola  vel 
praecipue  orta  sunt,  commemorare;  quia  sunt  odiosa."  Confir- 
matio,  V.  1,  p.  298. 

*  lus  Divinum,  632. 


ERASTUS  AND  ERASTIANISM 


327 


unpleasant  for  the  next,  if  they  believe  you.  And  it 
is  noteworthy  that  this,  though  under  different  names, 
and  not  always  explicitly  stated,  was  the  main  ground 
of  dispute  at  the  Westminster  Assembly.  It  was 
argued  by  the  supporters  of  the  discipline  that  the 
jurisdiction  was  in  no  sense  coercive,  but  purely 
spiritual.  Erastus  is  not  mwch.  blamed  in  his  own 
day  for  ascribing  too  much  power  to  the  magistrate. 
Beza  says  little  on  the  subject,  nor  do  any  anti- 
Erastians  deny  in  set  terms  that  all  coercive  authority 
belongs  to  the  Stated  They  are  rather  concerned  to 
shew  that  theirs  does  not  conflict  with  it.  Here 
indeed  Ursinus  breaks  away  from  his  party  and 
asserts  that  the  magistrate  must  be  consulted  and 
give  his  assent  to  excommunication.  Piyime,  a  great 
disciplinarian  and  anti-Erastian,  was  attacked  for 
supporting  the  discipline  on  what  we  should  call 
Erastian  grounds — on  the  ground,  that  is,  that  the 
government  was  supporting  or  was  about  to  support 
the  system,  and  every  one  must  therefore  obey  it. 
He  is  asked,  why  he  did  not  act  upon  that  view  in 
the  days  of  prelatical  tyranny  ^  Moreover  the  thing 
most  hateful  to  the  Presbyterians  in  England  was 
the  insistence  by  Parliament  on  a  right  of  final  appeal 

1  Beza  indeed  declares  the  magistrate  to  have  the  custody  of 
the  two  tables.  Tr  "tatus,  99.  The  real  point  between  the  two 
was  not  as  to  the  -ver  of  the  magistrate,  but  as  to  the  divine 
origin  of  excommu  . .(  ition.  We  may  compare,  as  showing  the 
Erastianism  of  the  anti-Erastians,  the  appeal  of  Ursinus  at  the 
end  of  his  Judicium,  begging  the  Elector  to  cause  questions  of 
new  doctrine  to  be  brought  before  him. 

2  Cf.  Certain  Brief  Observations  on  Mr  Prynne's  Twelve 
Questions. 


328 


ERASTUS  AND  ERASTIANISM 


to  the  civil  powers  They  object  to  all  limiting  of 
excommunication  and  want  to  free  it  alike  from 
exceptions  and  all  other  jurisdiction^  There  is 
indeed  no  doubt  that  in  England  the  main  force  of 
the  hostility  was  fear  of  clerical  tjrrannyl  Selden 

1  "But  we  deny  that  (in  a  well  constituted  Church)  it  is  agree- 
able to  the  will  of  Christ  for  the  Magistrate  either  to  receive  appeals 
(properly  so-called)  from  the  sentence  of  an  Ecclesiastical  Court, 
or  to  receive  complaints  exhibited  against  that  sentence  by  the 
party  censured,  so  as  by  his  authority  upon  such  complaint  to 
nullify  or  make  void  the  censure."    Gillespie,  253. 

"Great  wrestling  have  we  for  the  erecting  of  our  Presbyterie; 
it  must  be  a  divine  thing  to  which  so  much  resistance  is  made  by 
men  of  all  sorts ;  yet  by  God's  help  we  will  very  speedily  see  it 
set  up  in  spight  of  the  devil.... 

"Our  greatest  trouble  for  the  time  is  from  the  Erastians  in 
the  House  of  Commons.  They  are  at  last  content  to  erect  Pres- 
byteries and  Synods  in  all  the  land,  and  have  given  out  their  orders 
to  that  end ;  yet  they  give  to  the  ecclesiastic  courts  so  little  power 
that  the  Assemblie,  finding  their  petitions  not  granted,  were  in 
great  doubt  whether  to  set  up  any  thing  till,  by  some  powerful 
petition  of  many  thousand  hands,  they  obtain  more  of  their  first 
desires.  The  only  means  to  obtain  this  and  all  else  we  desire  is 
our  recruited  army  about  Newark."    Baillie,  n.  317,  18  (1645). 

^  "  To  limit  the  censure  of  excommunication  in  matter  of 
opinion  to  the  common  and  uncontroverted  principles,  and  in  the 
matter  of  manners  to  the  common  and  universal  practices  of 
Christianity,  and  in  both  to  the  parties'  known  light,  is  the  dan- 
gerous doctrine  of  the  Arminians  and  Socinians,  openeth  a  wide 
door  and  proclaimeth  liberty  to  all  other  practices  and  errors 
which  are  not  fundamental  and  universally  abhorred  by  all 
Christians,  and  tendeth  to  the  overthrow  of  the  Reformed  re- 
ligion."   The  Reformation  cleared,  21. 

'  "The  Clergy,  who,  what  Church  forms  soever  they  set  up, 
will  be  ever  imposing  their  private  opinions  in  matters  of  religion 
for  infallible  truths,  and  incensing  prince  against  people  and  people 
against  prince,  and  one  sort  of  men  against  another,  making  their 
followers  to  espouse  and  maintain  their  unjust  quarrels,  till  they 


ERASTUS  AND  ERASTIANISM 


329 


declares  that  "  Presbyters  have  the  greatest  power 
of  any  clergy  in  the  world  and  gull  the  laity  the 
most*." 

become  insensibly  slaves  to  their  ambition  and  boundless  power, 
instead  of  attaining  to  any  solid  real  or  truly  Christian  refor- 
mation. 

' '  Whether  that  wisdom  and  power  of  the  Clergy  which  hath 
taken  upon  it  in  all  ages  to  suppress  heresy  and  schism  by  human 
laws  and  penalties,  have  not  been  a  perverting  and  interrupting 
of  that  law  of  love  amongst  the  members  of  Christ's  body  which 
he  commands?  And  whether  they,  under  the  pretence  of  com- 
posing differences  and  settling  a  government  over  the  body  of 
Christ,  by  endeavouring  to  reduce  all  the  members  of  the  body 
to  unity  of  judgement  and  uniformity  of  practice  in  matters  of 
religion  upon  grounds  of  outward  compulsion  have  not  discovered 
in  themselves  that  true  spirit  of  schism  described  1  Cor.  12  (which 
they  would  seem  to  extirpate),  which  despises  all  below  it  and 
envies  all  above  it  as  unnecessary  members,  and  fit  to  be  cut  off 
from  the  body,  so  defacing  and  dividing  the  body  of  Christ  by 
labouring  to  make  the  whole  body  but  one  member,  and  where 
then  is  the  body?"    Twelve  Weighty  Queries,  p.  8. 

' '  Lay  no  more  burden  of  government  upon  the  shoulders  of 
ministers  than  Christ  hath  plainly  laid  upon  them ;  have  no  more 
hand  therein  than  the  Holy  Ghost  clearly  gives  them. ...I  fear 
an  ambitious  ensnarement,  and  I  have  cause.  I  see  what  raised 
Prelaeie  and  Papacy  to  such  a  height.  When  once  they  had  a 
hand  in  the  work  they  soon  engrossed  it,  and  then  made  it  the 
main,  the  sole  point  of  religion.  'Christian  perfection,'  saith 
one  of  them,  'doth  not  consist  in  almsdeeds  and  devotion,  but 
in  exalting  the  ecclesiastical  jurisdiction,  the  true  cement  of  that 
perfection.'  "    Coleman,  Hopes  Deferred  and  Dashed,  p.  25. 

"  O  ye  honourable  worthies,  open  your  eyes  and  see  whither 
you  are  going  or  whither  some  are  leading  you.  Once  the  Pope 
had  your  predecessors  at  his  beck,  and  you  may  again,  for  you 
will  lose  your  freedom  under  a  Presbyterian  domination.  The 
Lord  of  heaven  grant  that  England  never  see  that  day  wherein 
Parliament  must  not  meddle  with  Church  government  because 
a  spiritual  thing."    Coleman,  A  Brotherly  Admonition,  p.  6. 

'  Table  Talk,  Op.  m.  2064.    One  of  Baillie's  complaints  was 


330  ERASTUS  AND  ERASTIANISM 


That  the  discipline  really  aimed  at  a  function 
not  of  persuasion,  but  of  government  is  proved  (l)by 
the  argument  of  one  supporter  that  its  object  was 
the  external  peace  of  the  Church,  not  the  mind  of 
the  member*;  (2)  by  another's  argument  that  the 
proper  persons  to  maintain  order  in  the  churches 
and  prevent  brawling  are  the  ecclesiastical  autho- 
rities^; (3)  by  a  case  of  which  both  Erastus  and 
Bullinger  speak,  where  the  presbjrtery,  in  their 
anxiety  to  secure  jurisdiction,  were  actually  driven 
into  a  course  which  led  to  the  impunity  of  a  man 
accused  of  unnatural  vice  I 

that  in  a  form  of  discipline  at  one  time  proposed  it  would  have 
been  possible  for  the  ministers  to  be  controlled  by  laymen  in  the 
kirk-session  (m.  452).  A  good  account  of  the  clericalist  character 
of  Calvin's  repime  is  given  by  Bancroft,  Survey,  chaps,  ii.  and  m. 

^  "Neither  is  it  the  internal  or  nearest  aim  of  Discipline  in 
Church  government  to  work  upon  or  rule  the  mind,  which  is  not 
known  to  the  Church  or  Church  governors,  but  to  procure  the 
external  peace  of  the  Church,  which  may  be  ohtaiiml,  the  mind 
remaining  ■■itill  unconvinced."    Anstcer  to  a  Libel,  55. 

^  "  Suppose  there  should  be  any  disturbance  in  the  church 
assembled  for  the  public  worship  of  God  by  some  drunkard  or 
madman  or  any  heretic,  either  by  sporting  or  by  railing  or  seducing 
or  any  abominable  action,  where  lies  the  power  to  suppress  it? 
Is  it  in  the  magistrates  or  in  the  church  officers  ?  I  answer  it  is 
in  the  hand  or  power  of  the  church  officers  first,  because  they  were 
charged  to  keep  the  door,  that  there  be  no  such  occasion  for  dis- 
turbance in  the  midst  of  divine  worship."  An  Answer  to  those 
questions,  15. 

^  Cf.  Gwalther's  letter,  who  states  the  case.  "In  palatinatu 
nulla  prius  scandala  tam  atrocia  incidisse  quam  ea  sint,  quae 
senioram  illic  constitutorum  culpa  acciderint....Quod  si  ergo 
novam  in  Ecclesia  tyrannidem  his  principiis  stabilire  posse 
metuemus,  quis  nos  absque  causa  id  timere  dicet?"  Explicatio, 
379. 


ERASTUS  AND  ERASTIANISM 


331 


It  is  the  competing  jurisdiction  and  its  clericalist 
character  that  frighten  Erastus.  Yet  it  must  be 
allowed  that  he  writes  largely  of  the  civil  power. 
He  quotes  Musculus  to  the  effect  that  the  worst 
of  heresies  is  to  regard  a  Christian  magistrate  as 
on  the  same  level  with  a  heathen'.  Nor  can  there 
be  any  doubt  that  like  all  the  reformers  he  would 
have  been  ready  (and  indeed  probably  helped)  to 
impose  his  faith  by  the  help  of  the  civil  power  upon 
an  unwilling  people.  There  is  no  hint  of  toleration 
in  his  writings,  yet  his  crusade  was  one  in  favour  of 
popular  liberty  as  well  as  the  civil  power,  against 
those  who  were  duping  the  latter  into  assisting  an 
attempt  to  crush  both.  If  the  thing  is  to  be  intro- 
duced, in  Erastus'  view  the  people  as  well  as  the 
prince  should  be  consulted.  Further  there  are  one 
or  two  passages  in  which  he  says  that  the  magistrate 

>  Musculus,  though  in  many  ways  more  Erastian  than  Erastus, 
yet  saves  himself  from  the  charge  of  enslaving  religion  to  the 
State  policy.  "  Horum  eonsideratione  manifestum  redditur  etiam 
si  ad  magistratus  Christianos  cura  religionis  pertineat,  haud  tamen 
Ulis  competere,  ut  citra  verbum  Dei  quicquam  in  religione  con- 
stituant.  Nequit  enim  fieri  ut  arbitrarii  cultus  Deo  placeant,  quia  non 
sunt  voluntati  ipsius  conformes  :  nee  possunt  conscientias  hominum 
de  eo  certas  reddere,  quod  Deo  vere  serviant,  hoc  est,  rem  gratam 
faciant."  He  goes  on  to  show  that  Moses  in  the  Old  Testament, 
and  the  Apostles  in  the  New,  were  given  explicit  directions,  nothing 
being  left  to  their  arbitrary  wUl.  "  iZViec  praecedentibus  adiicerc 
voluimus,  ne  damnabiletn  eorum  magistratuum  temerUatcin  approbare 
videamur,  qui  absque  Verbo  Dei  quamcunque  volunt  religionis 
formam  subditis  suis  proponunt,  et  pro  potestate  sua  a  Deo  accepta 
authenticam  esse  servarique  volunt:  et  si  quis  illam  sequi  recusaverit, 
mox  contumaciae  ac  rebellionis  damnant,  quasi  Christiana  religio  a 
potestate  magistratuum  et  non  magis  ab  infallibili  divinorum  elo- 
quiorum  certitudine  et  auctoritate  pendeat."    Loci  Communes,  646. 


332 


ERASTUS  AND  ERASTIANISM 


might  teach,  if  he  had  time,  which  he  had  not,  and 
might  even  act  as  a  minister' ;  yet  Erastus  was  very 
anti-sacerdotal  and  bases  these  views  on  general 
principles  about  the  priesthood  of  the  laityl  And 
even  then  we  must  remember  the  true  religion  is 
supposed  to  be  established ;  there  is  no  notion  of 
a  right  in  the  prince  to  change  religion  at  will. 
Nor  is  there  any  evidence  that  he  would  have  put 
truth  under  the  heel  of  policy,  and  like  Hobbes  have 
dragged  religion  under  the  Juggernaut  car  of  reason 
of  State.  He  regarded  the  function  of  the  Church 
as  purely  persuasive  I  It  is  a  pity  that,  seeing  this, 
he  did  not  go  further  and  deny  the  right  of  the  State 
to  persecute,  whether  or  no  at  the  bidding  of  the 
Church  ^  But  at  least  it  was  liberty,  not  tyranny 
for  which  he  contended.  He  could  not  be  deceived 
by  the  specious  pretence  of  spiritual  illumination 
into  regarding  as  harmless  upon  earth  a  j  urisdiction, 
whose  only  virtue  in  the  eyes  of  its  supporters  lay 
in  the  fact  that  it  rested  upon  fear,  that  is  com- 
pulsion, and  therefore  needed  the  sanction  of  the 
State'.    Indeed  his  views  may  be  summed  up  in 

1  Confirmatio,  iv.  2,  p.  265.  ^  lUd.  in.  1,  p.  175. 

^  He  did  not,  for  instance,  object  to  the  rebuking  of  the 
magistrates  in  sermons.  What  he  could  not  endure  was  the  claim 
to  examine  them  judicially.  This,  in  his  view,  meant  an  assump- 
tion of  governmental  authority,    v.  1. 

*  If  the  truth  that  "  my  kingdom  is  not  of  this  world  "  be 
a  valid  reason  for  giving  no  coercive  jurisdiction  over  morals  to 
the  Church,  it  is  equally  valid  against  any  coercion  in  matters 
of  belief  by  the  State,  irrespective  of  the  question  as  to  whether  or 
no  the  State  is  advised  by  the  Church.    Cf.  Confirmatio,  p.  173. 

^  Cf.  Reformation  cleared  23:  '■^ There  cannot  he  so  much  as 
trial  and  examination  of  the  offence  without  authority  unless  the 


ERASTUS  AND  ERASTIANISM 


333 


the  following  passage  from  the  life  of  Baxter,  hardly 
an  Erastian  in  our  sense.  "The  Erastians,  I  thought, 
were  thus  far  in  the  right  in  asserting  more  fully 
than  others  the  magistrate's  power  in  matters  of 
religion,  that  all  coercive  power  is  only  in  their 
hands,  which  is  the  full  sense  of  the  Oath  of  Supre- 
macy, and  that  no  such  power  belongeth  to  the 
pastors  or  people  of  the  Church."  "  He  could  not 
but  approve  theii*  holding  the  pastoral  power  to  be 
only  persuasive,  though  authoritative  and  by  divine 
appointment ;  and  that  pastors  were  officers  of  God's 
institution,  who  were  not  only  to  persuade  by  sermons 
general  and  special,  but  by  particular  oversight  of 
their  particular  flocks ;  and  could  as  the  ground 
of  their  persuasion  produce  God's  commission  or 
command  for  what  they  said  or  did.  But  that  as 
pastors  they  had  no  secular  or  forcing  power;  and 
that  unless  the  magistrate  authorised  them  as  his 
officers  they  could  not  touch  men's  bodies  or  estates, 
but  had  to  do  with  conscience  only^"  This  is  also 
the  exact  line  taken  by  Coleman. 

It  is  the  impossibility  of  two  co-equal  jurisdictions 
in  a  State  which  strikes  Erastus.  And  this  is  obvious. 
One  of  them  must  be  final,  so  far  as  the  State  be 

party  he  loilling  to  appear ;  that  persuasion  and  jurisdiction,  that 
the  delivering  over  to  Satan  and  thereby  striliing  the  conscience 
with  the  terror  of  God  by  the  authority  of  Jesus  Christ,  which  hath 
the  promise  of  a  special  and  strong  ratification  in  heaven,  and  any 
other  ecclesiastical  way  whatever,  which  must  be  inferior  to  this, 
and  depend  only  upon  persuasion  on  the  one  part,  and  free  will 
on  the  other,  can  be  supposed  to  be  alike  efficacious."  Here  the 
appeal  to  force  is  evident. 

I  Reliquiae  Baxterianae,  139;  Calaniy,  p.  113. 


334 


ERASTUS  AND  ERASTIANISM 


united ^  In  a  State  where  the  magistrate  is  non- 
Christian,  and  therefore  ex  hypothesi  persecutes  the 
Church,  he  would  allow  jurisdiction  to  the  Church. 
But  where  this  is  not  the  case,  he  saw,  like  the  Papalist, 
the  need  of  unity.  He,  indeed,  points  out  that  the 
Popes  had  based  their  claim  to  a  universal  monarchy 
on  the  fact  that  since  there  was  only  one  supreme 
authoi'ity,  the  inferior,  i.e.  the  secular,  must  yield  to 
the  superior,  the  ecclesiastical  power.  Erastus  held 
the  modern  view  that  the  office  of  the  Church  as 
such  is  purely  persuasivel  But  since  he  identified 
Church  and  Nation,  he  naturally  added  that  the 
public  policy  must  be  inspired  by  Christian  maxims, 
and  would  punish  all  sins  as  well  as  crimes,  so  far  as 
needful.  In  a  State  where  men  are  all  of  one  faith, 
crime  and  sin  become  interchangeable  externally, 
and  many  things  forbidden  by  religious  sentiments 
may  be  punished  by  civil  means  without  injustice. 
Where  this  is  not  so,  the  attempt  to  enforce  morality 
as  such  on  the  community  is  a  form  of  persecution ; 
but  of  course  in  such  a  case  the  jurisdiction  of  various 
religious  bodies  may  appear  in  some  form,  for  they 
may  regard  as  wrong  acts  of  their  members  which 
the  State,  looking  to  the  whole  variegated  mass  of  the 
people  and  their  opinions,  must  treat  as  indifferent. 
It  may  be  added  that  what  we  know  of  the  actual 

'  Cf.  Coleman.  "I  could  never  yet  see  how  two  co-ordinate 
governments,  exempt  from  superiority  or  inferiority,  can  be  in 
one  State,  and  in  Scripture  no  such  thing  is  found  that  I  know 
of."  He  explains,  "  Government  I  take  strictly  for  the  corrective." 
Hopes  Deferred,  25. 

2  He  asks  why  the  duty  of  ministers  to  teach  is  to  be  expanded 
into  a  right  to  judge  (iv.  3). 


ERASTUS  AND  ERASTIANISM 


335 


working  of  the  discipline  lends  confirmation  to  the 
views  of  Erastus,  and  proves  it  to  have  acted  as  a 
restraint  upon  individual  liberty  ^ 

The  main  object  then  of  Erastus  was  not  to 
magnify  the  State,  nor  to  enslave  the  Church,  but 
to  secure  the  liberty  of  the  subject.  He  regarded 
the  discipline  as  a  narrow  and  illiberal  form  of  perse- 
cution, which  if  not  entirely  clerical  was  ecclesiastical 
to  the  core,  and  if  allowed  to  work  unchecked  was 

1  The  following  passage  from  the  ordinance  imposing  the 
discipline  in  England  (1648)  gives  some  notion  of  the  liberality  of 
the  system.  The  undermentioned  classes  of  persons  are  to  be 
excommunicated:  "  All  worshippers  of  images,  crosses,  crucifixes, 
or  relics  ;  all  that  shall  make  any  images  or  pictures  of  the  Trinity 
or  of  any  person  thereof  [this  would  condemn  all  religious  art] ;  all 
religious  worshippers  of  saints,  angels,  or  any  meer  creatures  ;  any 
person  that  shall  profess  himself  not  to  be  in  charity  with  his 
neighbours  ;  all  persons  in  whom  malice  appears,  and  they  refuse 
to  be  reunited... any  person  that  shall  upon  the  Lord's  day  use  any 
dancing,  playing  dice,  or  cards,  or  any  other  game,  masquing, 
wakes,  shooting,  bowling,  playing  at  football,  stool-ball,  wrestling, 
or  that  shall  make  or  resort  unto  any  plays,  interludes,  fencing, 
bull-baiting,  bear-baiting,  or  that  shall  use  hawking,  hunting,  or 
coursing,  fishing  or  fowling,  or  that  shall  publicly  expose  any 
wares  to  sale,  otherwise  than  is  provided  by  an  ordinance  of 
Parliament  of  the  sixth  of  April,  1644 ;  any  person  that  shall 
travel  on  the  Lord's  Day  without  reasonable  cause  ;  any  person, 
father  or  mother,  that  shall  assent  to  the  marriage  of  their 
child  to  a  Papist,  or  any  person  that  shall  marry  a  Papist ;  any 
person  that  shall  repair  for  any  advice  to  any  witch,  wizard,  or 
fortune  teller."  And  see  the  whole  story  of  the  attempt  to 
introduce  the  discipline  into  England  in  Neal,  who  was  by  no 
means  unfavourable  to  the  Puritans.  Cf .  also  a  letter  of  Gwalther's 
complaining  that,  whereas  the  episcopal  excommunication  was 
always  accompanied  by  reasons,  in  Heidelberg  persons  had  been 
excluded  from  the  sacrament  and  no  reason  given.  Explicatio, 
p.  387. 


336 


ERASTUS  AND  ERASTIANISM 


liable  to  ruin  the  State*.  He  asks  pertinently  enough, 
Who  will  be  best  obeyed,  the  magistrate  or  those  who 
have  power  to  excommunicate  him  ?  For  though  his 
throne  be  intact,  and  civil  obedience  be  still  preached 
as  a  duty,  are  men  in  a  State,  where  all  are  earnestly 
convinced  of  their  religion  and  all  united,  likely  to 
pay  much  respect  to  one  who  has  been,  although 
desirous  of  taking  part  in  the  sacrament  and  de- 
claring himself  repentant,  excluded  from  it  because 
the  presbytery  disbelieves  his  sincerity  ^  ?  What 
Erastus  disliked  was  not  only  the  attempt  to  steal 
from  the  prince  his  power,  but  also  the  arrogant 
assumption  of  ability  to  do  God's  office  and  read 
the  thoughts  of  the  heart.  If  a  man  desired  the 
sacrament,  was  orthodox  in  his  belief,  and  declared 
himself  penitent,  that  was  for  men  sufficient  proof 
of  repentance.  For  we  can  only  judge  externally, 
and  cannot  put  our  own  authoritative  interpreta- 
tion upon  the  sincerity  of  the  act  without  claiming 

1  Bancroft,  Survey,  208:  "There  is  but  only  tliis  difference 
between  tliem  and  the  rankest  Jesuits  in  Europe,  that  what  the 
one  sort  do  ascribe  unto  the  Pope  and  his  shavelings,  the  other  do 
challenge  unto  themselves  and  their  aldemien." 

2  "  Dicitis  quidem  Magistratui  excluso  nihilominus  obedientiam 
deberi.  Sed  quis  credat  me  illi  parere  velle,  cui  ego  vitae  totius 
modum  cum  potestate  et  coactione  praeseribere  me  posse  arbitror  ? 
Facile  est  obedientiam  praestare  ei,  qui  contra  voluntatem  tuam 
facere  nihil  ausit.  Sane  Magistratus  quem  sibi  subiecit  Presby- 
terium,  nihil  aliud  est,  quam  servus  Presbyterii  :  dum  pro  eius 
arbitratu  cogitur  in  quoslibet  molliter,  duriter,  cruciatu  corporis, 
exilio,  vinculis,  morte,  etc.  animadvertere."  Confirmatio,  v.  1, 
p.  301.  Bancroft  deliberately  connects  Buchanan's  doctrine  of 
deposition  with  the  alleged  right  to  excommunicate  princes  [Survey 
of  the  Pretended  Holy  Discipline,  204) ;  cf.  Knox,  Exhortation  to 
England,  Works,  v.  516. 


ERASTUS  AND  ERASTIANISM 


337 


infallibility.  Thus  excommunication  usurps  not  only 
man's  authority  by  its  claim  to  jurisdiction,  but 
God's  by  its  assurance  of  certainty.  The  Popes  had 
seen  this,  and  argued  logically  enough  that  an  ex- 
communicate King  could  not  rule  a  Catholic  people, 
and  so  they  proceeded  to  claim  a  deposing  power. 
Erastus  feared  lest  the  Presbyterate  should  do  the 
same,  and  a  glance  at  the  writings  of  Knox  will 
convince  us  that  his  fears  were  not  unreasonable. 

It  is  then,  I  think,  not  so  easy  to  answer  the 
question.  Was  Erastus  an  Erastian  ?  as  many  people 
imagine ;  or  if  we  answer  in  the  affirmative,  we 
shall  have  to  surrender  a  favourite  nickname  for 
our  opponents.  He  was,  I  believe,  less  Erastian 
than  Whitgift',  perhaps  less  so  than  Cranmer^,  far 
less  so  than  Selden  or  Hobbes-\  Strangely  enough, 
even  Parens*  uses  phrases  about  the  power  of  the 
magistrate  in  religion,  which  many  would  call  Erastian. 
As  Dr  William  Cunningham  says,  "  Erastus  is  less 
Erastian  than  some  who  in  modern  times  have  been 
ranked  under  that  designation,  not  perhaps  without 

'  See  Defence  of  the  Answer  to  the  Admonition,  Tractate  xx., 
Works,  in.  (295-325),  especially  p.  306,  where  he  quotes  with 
approval  "pri7n:es  deciding  in  matters  of  religion,  even  in  the  chief 
and  principal  points." 

^  See  his  works  passim,  more  especially  the  Corrections  of  the 
Institution,  Questions  concerning  the  Sacraments,  ii.  p.  117. 

^  Cf.  Lee,  preface  to  the  Theses,  who  says  that  Erastianism 
is  not  to  be  identified  with  the  tenet  of  Hobbes  that  the  civil  power 
may  establish  whatever  religion  it  pleases,  and  exact  obedience 
to  it,  which  the  subject  is  bound  to  render  for  conscience'  sake, 
or  even  set  up  any  form  of  Church  government  it  pleases,  and 
change  it  as  often  as  it  likes  (xlv.  vi.). 
Aphorisms,  §  xi. 

V.  22 


338  ERASTUS  AND  ERASTIANISM 


some  injustice  to  him,  but  most  certainly  with  no 
injustice  to  them'." 

But  though  this  may  be  the  case,  it  is  not  there- 
fore true  either  that  Erastus  was  right  or  that  his 
views  have  no  relation  to  Erastianism  or  Byzantinism. 
He  saw  one  side  in  a  debate  which  had  lasted  for 
centuries,  and  even  yet  is  hardly  concluded.  Taught 
by  experience  Erastus  desired  to  prevent  the  es- 
tablishment of  what  seemed  to  him  an  ecclesiastical 
tyranny.  In  the  course  of  his  argument  he  asserted 
that  in  a  State  of  one  religion  all  that  was  needed 
for  the  enforcement  of  piety  and  morality  could  and 
ought  to  be  done  by  the  magistrate;  and  that  for 
any  other  persons  to  assume  a  coercive  control  with- 
out appeal  was  a  usurpation  on  the  one  sovereign 
authority.  Yet  the  powers  which  he  admitted  to  be 
the  magistrate's  were  sufficiently  large  even  within 
the  limits  laid  down.  And  these  limits  could  not 
endure.  Erastianism  is  not  rightly  named,  if  we 
mean  by  it  the  explicit  tenets  of  Erastus.  Yet  the 
attribution  is  not  altogether  wrong.  For  the  word 
describes  the  actual  and  inevitable,  if  not  the  logical, 
development  of  his  teachings  when  torn  from  their 
context  and  shorn  of  the  careful  qualifications  with 
which  he  surrounded  them.  Erastus  did  not  mean 
to  do  more  than  assert  that  all  coercive  authority 
is  vested  in  the  State.  But  he  added  to  this  the 
prevailing  notion  that  the  State  must  support  one 
religion  and  tolerate  no  other.  It  was  then  not 
many  steps  to  the  theory  of  Hobbes  that  the  State 
could  support  any  religion  it  pleased  out  of  motives 

1  Hitt.  Theol.  n.  572. 


ERASTUS  AND  ERASTIANISM 


339 


of  State  policy  and  with  no  regard  to  truth.  In  fact 
the  power  which  Erastus  claimed  for  the  Christian 
might  soon  be  asserted  to  belong  to  the  non-Christian 
magistrate,  although  such  a  claim  was  far  enough 
from  the  thought  of  Erastus  and  from  that  of  many 
Erastians.  Erastus  paved  the  way  for  a  theory  more 
imposing,  more  systematic,  more  antagonistic  to 
reason  than  his  own.  For  assuredly  there  is  no 
less  reasonable  view  than  that  which  permits  a 
magistrate  to  set  up  a  Church  on  purely  political 
grounds  and  to  prohibit  all  others.  This  position, 
if  ever  thoroughly  carried  out,  might  be  more  de- 
structive to  free  inquiry  than  any  ecclesiastical 
tyranny.  It  did  not  indeed,  I  think,  directly  follow 
from  the  doctrine  of  Erastus  or  the  Erastian  re- 
formers. But  they  might  easily  be  misunderstood 
or  misrepresented  as  if  it  did. 

The  opposite  (or  ecclesiastical)  view  had  held  the 
field,  though  not  unassailed,  for  centuries.  The  Re- 
formation was  in  one  respect  the  uprising  of  the  laity 
against  the  clergy ;  in  another  an  assertion  of  State 
rights  against  a  federal  imperialism  in  Church  matters. 
It  was  in  fact  individualist  and  particularist,  as  op- 
posed to  a  system  which  was  socialistic  and  centralised. 
And  the  circumstances  under  which  it  took  place 
made  men  rely  very  largely  on  the  prince's  authority 
as  their  most  effective  support.  It  made  some  re- 
formers, such  as  Erastus  abroad  and  Anglicans  and 
many  Independents  at  home,  dread  the  Presbjrterian 
discipline  as  being  the  counterpart  of  that  bureau- 
cratic clericalism  from  which  they  believed  themselves 
to  have  escaped.    The  Erastians'  aim,  or  that  of 

22—2 


340 


ERASTUS  AND  ERASTIANISM 


most  of  them,  whether  at  Heidelberg  or  Dort  or 
Westminster,  was  rather  to  protect  the  individual 
than  the  State,  though  the  latter  object  was  a  good 
deal  more  prominent  at  Westminster.  This  indeed 
was  the  main  cause  of  the  later  use  of  the  word 
Erastianism  as  a  term  having  no  reference  to  excom- 
munication and  a  large  general  reference  to  State 
authority.  The  conflict  was  inevitable  between 
Church  and  State,  so  long  as  persecution  was  to 
be  enforced.  For  such  enforcement  required  the 
aid  of  the  State,  which  could  not  be  expected  to 
give  it  without  being  consulted.  The  remedy  lay 
beyond  the  vision  of  Erastus  and  the  men  of  his 
day,  though  not  far  beyond  that  of  some  of  his  op- 
ponents in  the  synod  of  Westminster.  With  liberty 
of  conscience  proclaimed  as  the  State  policy,  the 
conflict  of  the  two  jurisdictions  is  at  an  end  for 
all  practical  purposes.  When  the  State  leaves  off 
the  hopeless  task  of  imposing  one  faith  and  worship 
by  force,  and  the  Church  leaves  off  preaching  perse- 
cution as  a  duty,  there  would  be  no  cause  for  a 
serious  struggle,  and  on  the  principles  of  Erastus 
no  ground  for  interfering  with  the  jurisdiction  of 
religious  bodies  over  their  members :  while  the  ex- 
istence of  other  religious  bodies  would  prevent 
such  jurisdiction  doing  serious  civil  damage  to  a 
man  in  cases  where  the  whole  community  irre- 
spective of  creed  was  not  on  his  side^  Excom- 
munication  to   be   seriously  effective  needs  the 

1  For  instance,  supposing  for  the  sake  of  argument  it  were  right 
to  excommunicate  a  man  or  woman  who  had  married  a  divorced 
person.    Such  an  act  might  have  effect  on  devout  Churchmen, 


ERASTUS  AND  ERASTIANISM 


341 


absence  of  competing  Churches  or  systems.  But 
this  way  out  of"  the  difficulty  was  not  clear  to 
Erastus.  He,  it  may  be  thought,  would  unduly  exalt 
the  State.  Certainly  Erastians  did,  just  as  Olevianus, 
Kjiox,  and  the  disciplinarians  would  use  the  State  as 
the  handmaid  of  the  Church,  with  more  outward 
deference,  but  with  no  more  real  respect,  than  Gre- 
gory VII.  or  Boniface  VIII.  Neither  party  could  be 
at  peace  so  long  as  Catholics  and  Protestants  alike 
were  agreed  as  to  the  import  and  efficacy  of  an  auto- 
da-fe  as  the  means  of  promoting  the  'one  faith.'  For 
this  view  made  the  forces  of  Church  and  State  ne- 
cessary to  one  another,  and  yet  brought  them  into 
incessant  conflict.  The  problem  was  not  solved,  it 
was  transcended.  The  battle  was  over  only  when 
men  saw  that  peace  being  the  end  of  the  State, 
social  well-being  would  be  attained  by  leaving  all 
religious  bodies  the  fullest  liberty  to  organise,  to  de- 
velop, and  to  preach.  To  employ  a  familiar  method, 
toleration  was  the  higher  unity  in  which  were  resolved 
the  contrary,  but  complementary  ideals  of  secular 
authority  and  spiritual  independence.  The  victory 
was  won  by  both  sides  and  by  neither.  On  the  one 
hand,  ecclesiastical  pretensions,  however  preposterous, 
burnt  into  men's  minds  (and  indeed  their  bodies)  the 
sense  that  society  needs  some  basis  other  than  force. 
We  owe  to  them  the  belief  that  a  duty  is  laid  upon 
men  to  secure  freedom  for  the  expression  of  spiritual 
aspirations,  a  freedom  which  might  otherwise  have 

but  unless  the  general  sentiment  of  tbe  community,  Churchmen, 
Dissenters,  and  Agnostics,  was  in  favour  of  it,  it  would  be  unlikely 
to  injure  such  persons  seriously  in  their  business  or  profession. 


342 


ERASTUS  AND  ERASTIANISM 


been  sacrificed  to  the  shock  of  national  ambitions  or 
the  jealousies  of  competing  dynasties.  On  the  other 
hand,  but  for  Erastus  and  his  followers,  even  Hobbes 
and  the  supporters  of  the  Divine  Right  of  Kings, 
who  insisted  so  strongly  on  the  right  of  the  State 
to  be,  on  the  essential  need  of  political  society  to 
human  well-being,  and  on  the  duty  of  preserving 
men  against  the  evils  of  a  domination,  which  on  its 
own  showing  was  human  in  administration  and  divine 
in  its  sanctions  and  claims,  and  therefore  likely  to  be 
the  more  unrestrained  in  its  tyranny,  there  might 
have  been — there  nearly  was — an  agelong  enslave- 
ment of  human  thought  and  action  to  a  system  in 
some  respects  more  narrow  because  more  complete, 
less  broadly  human,  less  careful  of  culture  and  in- 
tellectual enlightenment,  than  was  the  system  of  the 
mediaeval  world  taken  at  its  worst. 


BARTOLUS'  AND  THE  DEVELOPMENT 
OF  EUROPEAN  POLITICAL  IDEAS 

I. 

There  are  two  names  which  must  be  well  known 
to  anyone  who  has  glanced  at  the  margins  of  works 
on  law  and  politics  produced  in  continental  countries, 
in  the  sixteenth  and  seventeenth  centuries.  With 
St  Augustine,  quoted  by  writers  like  Althusius  more 
than  anyone  else,  with  Innocent  IV.  the  "  dominus 
canonistarum,"  the  master  of  the  Decretalists,  a  man 
never  to  be  ignored  in  the  history  of  thought,  there 
stand  out  the  great  twin  luminaries  of  Perugia, 
Bartolus  and  Baldus,  his  pupil,  friend  and  adversary. 
They  are  pre-eminent  among  the  forgotten.  Grotius 
and  Gentilis  and  Bodin  not  merely  quote  Bartolus, 
but  are  what  they  are  largely  because  of  him.  Pages 
might  be  filled  with  the  epithets  of  laudation  from 
time  to  time  applied  to  him.  He  is  the  mirror  and 
lamp  of  the  law,  his  name  is  not  so  much  that  of 
a  man  as  the  very  spirit -of  jurisprudence.  Some  say 
that  he  is  the  sole  authority  superior  to  the  Roman 

1  I  think  it  best  to  speak  of  him  by  the  tenn  by  which  he  is 
everywhere  known  and  criticised.  It  seems  pedantry  to  call  a  man 
Bartolo,  who  was  never  known  as  such  in  the  only  circles  which 
made  him  famous.  But  for  those  who  like  his  full  name  it  is 
Bartolo  Bonaeursi  da  Sassoferrato. 


344  BARTOLUS  AND  THE  DEVELOPMENT 


Rota,  while  in  Spain  if  there  is  a  defect  of  law,  the 
opinion  of  Bartolus  is  treated  as  itself  decisive. 

It  was  said  that  he  held  the  primacy  in  the 
schools,  while  his  authority  even  in  the  courts  was 
sacrosanct,  and  neither  professors  nor  judges  dared 
to  contradict  his  opinion. 

One  writer  ushers  him  into  the  modem  world  with 
the  thought  of  the  golden  age,  when  Perugia  gave 
a  law  to  the  nations. 

lUe  super  cunctos  toto  celebratus  in  orbe, 
Quotquot  habent  aliquod  juris  ab  arte  decus, 

Bartolus,  Astreae  datus  olim  munere  ut  assent 
Res  hominum  miserae  prosperiore  loco. 

Even  when  a  later  age  finds  hard  of  digestion  his 
assertion  that  to  deny  that  the  Emperor  is  universal 
lord  is  probably  heretical,  it  is  with  humility  that  his 
authority  is  questioned  on  a  similar  plea  to  the  "some- 
times slumbering  "  of  Homer.  One  author  thought 
it  needful  to  compile  a  harmony  of  his  apparent 
inconsistencies;  in  the  Goncordantia  Contrarietatum 
of  Carolus  de  Nicellis,  three  hundred  and  thirty- 
seven  of  such  difficulties  are  resolved. 

A  Papalist  writer  of  a  later  age^  avows  that  his 

work  is  written  for  the  benefit  of  those  whose 

literature  is  limited,  or  almost  limited,  to  the  works 

of  Bartolus  and  Baldus.    If  it  was  worth  the  while 

of  a  man  who  has  the  practical  object  of  extolling 

the  Pope's  power  to  do  this,  it  must  surely  be  worth 

our  while  inquiring  what  sort  of  mind  it  would  be 

that  this  exclusive  devotion  would  produce.  My 

*  Thomas  de  Simanca  in  Roceaberti,  Bibliotheca  Maxima 
Pontificalis. 


OF  EUROPEAN  POLITICAL  IDEAS 


345 


contention  is  that  it  is  the  kind  of  mind  which  for 
two  or  three  centuries,  at  least,  say  fi'om  Jean  Petit 
to  John  Locke,  discussed  political  and  cognate 
problems  on  a  basis  which  was  primarily  legalist, 
and  secondarily  canonist  and  scholastic. 

These  remarks  are  purely  tentative,  and  I  fear 
that  to  lawyers  they  may  seem  either  erroneous  or 
trivial  or  both.  But  I  am  convinced  that  someone 
will  have  to  make  a  serious  study  of  the  contribution 
of  Bartolus  to  our  world ;  and  a  brief  paper  may  at 
least  make  suggestions. 

How  came  it  that  it  was  sufficient  to  quote 
Bartolus,  and  in  many  cases  to  ignore  his  prede- 
cessors ?  Why  was  Albericus  Gentilis  able  to 
regard  him  as  the  chief  of  the  old  lawyers,  even 
though  he  quotes  Baldus  more  often  ? 

A  perusal  of  the  ordinary  treatises  (more  especi- 
ally the  continental,  but  our  own  Hooker  affords  an 
example)  on  the  topics  that  line  the  borderland 
between  politics,  law,  and  theology  will  make  clear 
that  there  is  a  certain  common  element  in  which  all 
discussion  takes  place.  This  atmosphere  is  compact 
of  a  peculiar  amalgam  of  law  strictly  so  called,  certain 
general  ideas  which  are  expressed  in  the  civil  and 
canon  law,  and  some  common  principles  of  ethical 
and  theological  reasoning.  All  this  is  responsible 
partly  for  the  internal  structure  of  the  modern  state 
everywhere  but  in  England,  and  to  some  extent 
here\  It  is  avowedly  the  foundation  of  inter- 
national law,  while  for  a  long  time  it  had  a  great 
deal  more  to  do  with  the  methods  and  subjects  of 

1  See  particularly  Maitland,  English  Law  and  the  Bmaissance. 


346  BARTOLUS  AND  THE  DEVELOPMENT 

political  speculation  than  those  who  live  after 
Bentham  and  Rousseau  are  willing  to  admit. 

Now,  Bartolus  (for  we  may  include  Baldus  who 
depends  on  him)  is  the  channel,  or  one  of  the  main 
channels,  through  which  this  stream  of  tendency 
flowed  into  the  modern  life.  A  brief  perusal  of  the 
writings  of  Albericus  Gentilis,  both  the  De  Jure 
Belli  and  the  Regales  Disputationes,  will  make  this 
point  clear;  but  a  glance  at  Whewell's  edition  of 
Grotius,  or  Bodin,  De  Republica,  would  illustrate  it. 
What  is  the  reason  of  this  ?  That  is  the  first  question 
we  must  try  to  answer,  and  then  we  shall  see  some 
of  the  more  important  characteristics  of  his  work. 

The  cause  of  his  influence  is  twofold,  the  old 
explanation,  the  man  and  the  milieu.  Born  in  1313, 
the  son  of  a  lawyer,  Francesco  Bonacursi,  he  lived 
at  the  beginning  of  the  age  of  transition  in  Italy, 
which  was  earlier  there  than  anywhere  else.  The 
last  flicker  of  imperial  power  which  had  given  reality 
to  the  dreams  of  Dante  was  over.  It  was  only  ten 
years  since  Boniface  VIII.  had  "died  like  a  dog."  The 
final  victory  of  the  Papacy  (now  at  Avignon)  over 
its  imperial  victims  had  been  won.  Bartolus  was  the 
very  good  servant  of  Charles  IV.,  and  had  been  on  an 
embassy  to  win  from  him  privileges  for  his  adopted 
city  and  university  of  Perugia.  The  Italian  cities 
had  established  their  independence ;  the  Papal  and 
the  imperial  authorities  were  both  very  much  in 
abeyance ;  and  the  age  of  the  despots  was  ap- 
proaching. The  scholastic  philosophy  had  taken 
its  most  authoritative  shape ;  and  with  the  addition 
of  the  last  '  extravagant '  of  the  Emperor  Hemy  VII. 


OF  EUROPEAN  POLITICAL  IDEAS 


347 


the  Corpus  Juris  Civilis  had  attained  its  limit,  and 
become  within  its  ovm  covers  nearly  as  strong  a 
witness  to  the  unity  of  history  as  the  Bible,  The 
Sext  had  lately  been  added  to  the  Canon  Law  by 
Boniface  VIII.,  and  though  the  various  collections  of 
extravagants  had  not  assumed  their  final  form,  the 
system  was  in  all  essentials  complete.  It  is  remark- 
able, by  the  way,  that  the  best  life  of  Bartolus  should 
be  by  Lancellotti,  a  canonist  himself  of  no  mean 
repute,  the  author  of  Institutes  of  the  Canon  Law, 
sometimes  printed  at  the  close  of  Corpus.  More- 
over, Bartolus  had  a  practical,  not  merely  an  academic 
training.  He  had  been  assessor  at  Todi,  where  he 
was  alleged  (though  it  has  been  denied)  to  have 
incuiTed  odium  by  over-torturing  a  youth ;  and  also 
at  Pisa;  before  he  settled  down  to  his  lecture-room 
at  Perugia,  the  city  which  was  so  anxious  to  retain 
him  that  it  gave  him  and  his  heirs  its  freedom,  lest 
he  should  be  bought  up  by  another  place,  like  a 
'professional'  of  a  different  orders  This,  then,  was 
the  situation.  A  practical,  no  less  than  a  theoretical 
training  placed  a  man  of  commanding  abilities  at 
the  head  of  his  profession  in  the  days  when  the 
Roman  law  was  becoming  daily  more  influential 
(except  in  England),  but  when  the  Emperor's 
authority  was  less  than  ever,  and  his  subservience 
to  the  Pope  extreme.  The  Italy  of  that  day  was 
rapidly  developing  those  conditions  which  were  to 
make  the  international  politics  of  modern  Europe 
find  their  models  in  the  balance  established  by 

^  The  documents,  as  also  that  conferring  the  doctorate,  are 
printed  at  large  in  Lancellotti. 


348  BARTOLUS  AND  THE  DEVELOPMENT 


Cosimo  de'  Medici,  and  to  cause  the  political  philo- 
sophy of  the  Renaissance  to  bow  to  its  prince  in 
Machiavelli.  Tjranny  was  becoming  both  a  fact 
and  a  danger,  while  circumstances  tended  to  an 
amalgamation  of  both  sides  of  the  law  of  the  empire, 
civil  and  canon.  The  terms  Guelphs  and  Ghibellines 
had  lost  their  own  meaning  and  become  the  mere 
symbol  of  political  partisanship,  and  are  so  treated 
by  Bartolus^ — party  spirit  for  legitimate  ends  being 
justified  by  the  cry  of  St  Paul,  "  I  am  a  Pharisee, 
the  son  of  a  Pharisee \"  The  world  then  in  which 
Bartolus  lived  was  in  the  transition  stage.  We 
must  remember  that  the  predominance  of  Roman 
law  is  rather  a  modern  than  a  mediaeval  fact,  the 
'reception'  in  Germany  dates  from  1495.  Hence  it 
came  about  that  any  mind  capable  of  that  peculiar 
combination  of  scholarship  and  actuality,  which  can 
at  once  distil  the  learning  of  the  past  and  assimilate 
the  facts  of  the  present,  might  easily  preserve  for 
future  generations  everything  that  was  of  living 
force  in  the  period  that  was  drawing  to  its  close, 
and  at  the  same  time  suggest  some  of  the  thoughts 
which  should  dominate  the  future. 

Such  a  mind  was  that  of  Bartolus.  He  was  "  the 
heir  of  all  the  ages,"  and  also  in  "  the  foremost  files 
of  time."   First  and  foremost  a  Roman  jurist,  he  was 

1  Note  his  derivation  of  the  tenns  Guelph  and  Ghibelline. 
"  Sieut  Gebellus  interpretatur  locus  fortitudinis,  ita  Gebellini 
interpretantur  eonfidentes  in  fortitudine  scilicet  tempore  militum 
et  armorum ;  et  sicut  Guelpha  interpretatur  os  loquens,  ita 
Guelphi  interpretantur  eonfidentes  orationibus  et  in  divinis." 
This  is  from  the  tractate  De  Guclphis  et  Ghihellinis  which  is  really 
a  treatise  on  civil  factions  and  rebellion. 


OF  EUROPEAN  POLITICAL  IDEAS  349 


many  other  things  besides.    The  law  was  to  him  not 
so  much  a  pursuit  as  a  passion.   It  was  said  that  the 
whole  civil  law  had  been  transformed  into  the  very- 
blood  and  sap  of  his  being ;  and  he  speaks  of  laws, 
dry  and  impersonal  though  they  appear  to  us,  with 
a  real  affection,  as  deserving  letters  of  gold,  good,  &c., 
as  one  praises  a  good  child ;  in  his  discourse  on  his 
brother's  doctorate  he  compares  the  noble  edifice  of 
jurisprudence  to  the  many  mansions  of  "  our  Father's 
house,"  with  room  for  many  and  various  individu- 
alities'. Whatever  problem  he  is  solving,  the  question 
in  his  mind  is  always,  what  is  it  legally  right  to  do — 
and  this  even  in  cases  where  laws  fail  and  you  go  to 
theologians.    Now  this  characteristic  is  at  the  root 
of  the  methods  of  political  discussion  right  through 
the  next  four  centuries,  and  is  the  explanation  of 
much  that  seems  to  us  ridiculous,  alike  in  the  theory 
of  the  divine  right  of  kings,  in  the  doctrine  of  the 
original  contract,  and  in  international  law.  The 
same  notion  is  the  vice  of  most  systems  of  ethics, 
and  is  partly  responsible  for  'probabilism.'    It  is 
largely  the  determining  element  of  the  various 
attempts  of  the  confessional  era  in  theology  to  cry- 
stallise and  jurify  the  mysteries  of  God's  providence 

1  "  In  domo  patris  mei  mansiones  multae  sunt.... Hoc  est 
civilis  sapientiae  mansiones  multae  sunt,  quidam  enim  ad  legendum 
in  civitatibus  regiis  assumuntur,  quidam  ad  advocandum  in  curiis 
principum  et  regiis  attrahuntur,  alii  ad  consulendum  in  cameris 
assidue  requiruntur,  alii  ad  consilium  principum  assumuntur.  Hi 
enim  sunt  quibus  Kespublica  regenda  committitur.  Istae  sunt 
hujus  sapientiae  mansiones,  propter  quas  quilibet  Jurista  seeurus 
et  gratiosus  redditur  "  (Bartolus,  Sermo  in  doctoratu  domini  Joannis 
a  Saxoferrato,  x.  223). 


350  BARTOLUS  AND  THE  DEVELOPMENT 


and  man's  freedom.  Now  it  is  this  fact  which 
enabled  Bartolus  to  assimilate  and  utilise  all  other 
sources  of  knowledge  open  at  this  time,  and  also 
to  influence  departments  of  his  life  other  than 
the  purely  legal.  He  had  the  childlikeness  of  the 
true  scholar,  and  the  susceptibility  to  mental  im- 
pressions of  a  mind  that  was  ever  alive.  There  is 
no  sign  of  his  possessing  the  aesthetic  sensibilities 
that  we  associate  with  the  Renaissance.  We  are 
told  that  he  took  his  food  by  weight  and  walked 
with  his  eyes  intent,  speculative  rather  than  ob- 
servant. His  gaze  was  in  fact  inwax-d,  and  he 
absorbed  intellectual  rather  than  artistic  culture. 
In  this  respect  he  was  a  mediaeval.  Trained  in  the 
scholastic  philosophy  he  had  that  habit  of  giving 
rational,  even  if  erroneous,  explanations  of  things, 
which  will  never  be  content  with  mere  appearances. 
He  supplies,  for  instance,  philosophical  grounds  for 
all  the  colours  of  heraldry,  thereby  evoking  the 
ridicule  of  Lorenzo  Valla,  who  can  see  no  value 
except  that  which  meets  his  eye^ 

His  style  may  be,  what  the  Renaissance  scholar 
calls  it,  rather  rustic  than  classical,  less  Latin  than 
barbarian ;  but  it  is  a  style  eminently  sincere,  direct, 
and  expressive.  Whether  the  laboured  pedantry  of 
Renaissance  classicism  was  altogether  an  improve- 
ment may  not  be  quite  so  certain  as  Valla  thoughts 

1  Compare  such  books  as  Blackwood's  Apologia  pro  Regibus,  or 
still  more,  the  stilted  pedantry  of  the  polite  oration  in  favour 
of  Mary  Stuart  published  in  Teulet's  Relations  Diplomatiques ,  and 
see  on  the  whole  subject  Creighton,  The  Early  Renaissance  in 
England. 

^  Valla's  treatise  is  a  little  letter  on  the  subject  published  as 


OF  EUROPEAN  POLITICAL  IDEAS 


351 


The  fact  is  that  one  of  the  results  of  the 
Renaissance  has  been  to  substitute  journalistic  im- 
pressionism for  reasoning  and  thought.  This  is  true, 
even  of  Erasmus  and  Luther.  The  scholastic  philo- 
sophy may  deserve  much  that  is  said  against  it,  but 
it  did  make  its  votaries  educated  men  and  not  mere 
"  pickers-up  of  unconsidered  trifles."  All  this  is 
illustrated  by  Bartolus.  The  extent  to  which  he 
had  assimilated  the  teaching  of  St  Thomas  is 
shewn  by  his  treatise  De  Testivioniis^,  also  by  the 
work  I  have  already  mentioned,  De  Insigniis  et 
Armis.  The  latter  is  said  by  its  German  editor, 
Hauptmann,  to  be  the  earliest  extant  treatise  on 
heraldry.  It  is  very  interesting  to  compare  it  with 
Valla's  criticism,  for  they  represent  the  clash  of  two 
worlds,  and  no  mere  personal  difference.  Bartolus 
sets  forth  the  principles  of  heraldry  and  tries  to 
determine  a  philosophical  significance  for  every 
colour  and  every  sign. 

Valla  scoffs  at  the  Latin,  ridicules  the  notion  of 
finding  any  meaning  in  the  colour,  such  as  gold 
representing  the  sun,  the  noblest  of  all  colours,  and 
demands  what  need  there  is  of  any  order  beyond 
that  of  mere  caprice  and  individual  taste.  His 
words  might  have  been  written  by  a  scholarly 
Englishman  of  the  eighteenth  century,  who  liked 
good  Latin,  but  to  whom  the  bare  idea  of  meaning 

an  appendix  to  the  Apologia,  which  he  wrote  to  secure  himself 
against  the  charge  of  heresy. 

1  See  especially  the  passage  about  Prudence.  It  is  noteworthy, 
by  the  way,  that  he  declares  expert  witnesses  to  be  really  judges 
rather  than  witnesses  proper. 


352  BARTOLUS  AND  THE  DEVELOPMENT 

in  gesture  or  form  was  distasteful.  In  their  dislike 
of  all  regulations  they  breathe  the  same  spirit  as 
Rabelais's  vision  of  the  Abbey  of  Theleme.  Bartolus 
was  perhaps  too  apt  to  find  the  universal  in  every 
particular,  like  that  later  philosopher  who  found  the 
Idea  incarnate  in  the  constitution  of  the  Prussian 
State.  But  at  least  he  had  a  careful  and  reasoned 
view  of  things  as  a  whole,  and  was  not  led  astray  by 
the  cleverness  which  mistakes  the  novel  for  the  true, 
and  kills  individuality  by  an  excess  of  individualism. 
This  little  treatise  illustrates  another  trait  of  the 
author,  his  naif  interest  in  himself.  In  order  to 
illustrate  his  views  about  the  quarterings  on  the 
shield  in  a  coat  of  arms,  he  introduces  a  personal 
incident.  The  question  is  about  the  meaning  of  the 
left  or  the  right  side  of  the  shield.  He  tells  us  of 
a  dispute  he  had  with  the  Jew  who  once  taught  him 
Hebrew  ^ 

Bartolus  had  declared  that  the  Jews  must  be 
barbarians,  because  they  wrote  "  strange  characters 
from  right  to  left,"  and  repeats  the  whole  discussion 
about  the  effect  of  reading  on  the  eye.  In  the  same 
way  he  constantly  introduces  personal  touches  to 
illustrate  the  most  abstract  theme.  Speaking  of  the 
Roman  law  of  emancipation  of  children,  he  explains 
how  a  certain  friar,  Peter  of  Assisi,  had  a  school  for 
foundlings  at  Venice,  and  often  made  it  a  condition 
of  giving  up  these  '  boarded-out '  children  that  they 
should  be  actually  adopted.  This  man,  he  tells  us, 
was  his  first  teacher  and  was  of  great  piety.  He 
owed  him  a  debt  of  gratitude,  for  he  taught  him  so 
1  §  29,  pp.  22-3. 


OF  EUROPEAN  POLITICAL  IDEAS 


353 


well  that  at  the  age  of  fourteen  he  was  able  to  learn 
civil  law  from  Cino  da  Pistoia.  Here  he  made  such 
progress  that  he  was  able  to  go  to  Bologna  and  get 
his  doctorate  in  his  twenty-first  year.  Then  he  adds 
one  of  those  touches  which  help  us  to  stretch  hands 
across  the  ages :  "  Ex  multo  amore  quern  ad  illius 
fratris  Petri  bonitatem  gero,  cum  calamus  hoc  scribit, 
cordis  oculus  lacrymatur\"  I  do  not  think  anyone 
can  read  that  for  the  first  time  in  its  place  without 
loving  the  writer.  How  different  fi:-om  Wyclif,  the 
most  disagi'eeable  beyond  exception  of  all  mediaeval 
thinkers !  Other  touches  come  in  at  times :  the 
De  insigniis  is  written  partly  at  least,  as  he  says, 
because  he  had  received  from  Charles  IV.  the  right 
to  bear  arms. 

He  tells  us  what  they  are — a  lion  rouge  on  or. 
He  writes  his  treatise  on  the  Ad  reprimendum  of 
Henry  VII.  in  honour  of  his  gi'andson  Charles  IV., 
who  made  him  what  we  should  call  a  Privy  Coun- 
cillor, and  granted  him  and  all  his  heirs  who  were 
doctors  of  law  the  right  to  legitimate  bastards.  He 
spent  a  summer  holiday  at  Tivoli,  and  this  is  the 
origin  of  his  treatise  De  Alveo  et  Flumine.  When- 
ever any  law  can  be  illustrated  by  a  present  fact  or 
a  case  in  his  experience  as  judge,  he  tells  it,  e.g.  the 
state  of  parties  in  Todi  where  it  was  the  custom  to 
put  Guelphs  and  Ghibellines  in  equal  numbers  on 
the  council.  To  illustrate  the  power  of  the  Emperor 
before  coronation  he  relates  his  embassy  to  Charles 

1  VI.  53.  I  quote  throughout  from  Lyons  edition  of  his  works, 
1547.  This  little  touch  brought  harm  to  Bartolus.  In  consequence, 
people  said  he  must  have  been  himself  illegitimate. 

P.  23 


354  BARTOLUS  AND  THE  DEVELOPMENT 


and  quotes  the  words  of  the  charter  he  issued  to 
Perugia.  On  the  subject  of  banishment  he  speaks 
of  the  banished  "  of  our  time,"  when  every  city  had 
its  exiles,  and  proves  that  they  lose  civic  rights  only, 
not  the  common  rights  of  Roman  citizens.  Common 
law  means,  of  course,  to  him,  here  and  always,  Roman 
law ;  the  idea  of  national  law  being  common  would 
have  seemed  a  contradiction.  His  treatise  on  re- 
prisals, which  had  much  to  do  with  international 
law,  was  written  to  suit  the  actual  facts  of  Italy.  So 
with  the  work  on  the  tjrrant,  written  to  point  out 
and  if  possible,  obviate,  a  very  real,  immediate  danger. 
All  this  illustrates  the  freshness  of  his  mind,  and  its 
constant  attention  to  practical  needs,  even  amid 
abstruse  legal  reasoning.  His  method,  on  the  other 
hand,  is  the  dialectical  one  of  St  Thomas,  to  state 
opinions  on  both  sides  with  authorities,  and  then  to 
give  his  own.  This  method  has  the  great  merit  that 
it  enables  a  man  to  use  his  selective  powers  without 
mere  aiming  at  eccentricity,  and  that  it  prevents  him, 
as  a  rule,  overlooking  considerations  of  importance. 
Lorenzo  Valla  may  scofif  at  it,  but  as  a  means  of 
reaching  the  truth,  especially  in  legal  matter,  it  is 
infinitely  superior  to  the  slipshod  literary  brilliancy 
which  came  in  with  the  Renaissance,  and  has  been 
on  all  non-scientific  subjects  steadily  gaining  ground 
from  the  days  of  Aeneas  Sylvius  to  those  of  Mr 
Richard  Le  Gallienne. 

Here,  then,  is  the  man  so  far  as  I  can  see  him. 
A  born  student  with  a  child's  delight  in  his  subject 
and  in  himself,  but  a  man's  intellect — a  spirit  alive 
vnth  all  the  tendencies  of  the  time,  which  had  in 


OF  EUROPEAN  POLITICAL  IDEAS  355 

them  anything  analogous  to  legal  questions ;  a  mind 
trained  in  the  scholastic  philosophy,  with  a  faith  in 
its  method  and  a  desire  for  rational  explanations ;  a 
memory  in  which  facts,  personal,  political,  legal, 
stuck,  observant  of  all  existing  political  facts  and 
discerning  tendencies  only  beginning — essentially  an 
"  intellectual,"  yet  without  conceit,  but  not  without 
vanity,  with  a  strong  grasp  of  the  practical  aspect  of 
abstract  reasoning,  and  no  desire  at  all  merely  to 
weave  metaphysical  cobwebs ;  a  mind  alert,  vivid, 
with  an  imagination  indeed,  but  one  occupied  not 
about  beauty  of  form  or  colour,  but  about  law  and 
government.  Such  a  mind  was  eminently  fitted  to 
sum  up  in  itself  the  long  ages  of  legal  development, 
and  to  suggest  the  lines  of  future  advance. 

II. 

Now  let  us  try  to  estimate  the  actual  contri- 
bution of  Bartolus  in  this  respect. 

Bartolus  may  be  described  as  an  Imperialist — 
with  a  difference.  That  difference  it  is  which  made 
his  views  so  influential  in  the  future.  At  first  sight 
he  holds  the  theory  of  the  world-monarchy  of  the 
Emperor  as  absolutely  as  Bozius  held  it  of  the 
Papacy.  The  Emperor  has  all  laws  in  scrinio  pec- 
toris; Imperial  laws  are  the  only  laws  which  are 
universal ;  all  else  are  merely  particular  facts.  All 
rebellion  may  be  condemned,  because  kings  are  really 
Imperial  officers.  Even  the  kings  of  England  and 
France,  whatever  they  may  say,  are  subjects  of  the 
Roman  Empire ;  it  is  (probably)  heresy  to  doubt  the 
universal  lordship  of  the  Emperor,  and  for  that 

23—2 


356  BARTOLUS  AND  THE  DEVELOPMENT 


reason  is  only  natural  in  Jews,  or  Saracens  or  Greeks. 
Quod  principi  placuit  legis  habet  vigorern  is  true, 
though  it  is  decent  to  consult  people. 

On  the  "digna  vox"  he  admits  that  the  Emperor 
is  under  the  laws,  but  by  self-imposed  compulsion, 
not  necessity,  although  he  is  bound  to  keep  treaties 
with  cities,  because  "pacta  sunt  de  jure  gentium." 
This  latter  is  the  notion  which  both  gave  significance 
to  the  idea  of  the  original  contract  and  also  enabled 
Grotius  to  found  his  system. 

He  clearly  holds  the  usual  maxims  that  whatever 
the  sovereign  permits  he  commands,  and  sovereignty 
is  inalienable \  But — and  here  comes  in  the  positive 

1  This  is  the  most  important  passage  on  the  subject: 
"Duo  sunt  genera  gentium  principaliter,  prime  populus  Eo- 
manus,  secundo  populi  extranei.  Circa  primum  quaero  quis  dieatur 
populus  Eomanus....Diceres  tu :  cum  modicae  gentes  sint,  quae 
Eomano  Imperio  obediant ;  ergo  videtur,  quod  sit  parvus  populus 
Eomanus.  Eespondeo,  quaedam  sunt  gentes,  quae  Imperio  Eomano 
obediunt ;  et  istae  sine  dubio  sunt  de  populo  Eomano.  Quaedam 
sunt  quae  non  obediunt  Eomano  Imperio  in  totum,  sed  in  aliquibus 
obediunt;  ut  quia  vivunt  secundum  legem  populi  Eomani,  et 
Imperatorem  Eomanorum  esse  dominum  omnium  fatentur,  ut  sunt 
civitates  Tusciae,  Lombardiae  et  similes ;  et  isti  etiam  sunt  de 
populo  Eomano.  Nam  cum  populus  Eomanus  in  eis  exerceat 
jurisdictionem  in  aliquo  articulo  totam  jurisdictionem  retinet.... 
Quidam  sunt  populi,  qui  nullo  modo  obediunt  Principi  nec  istis 
legibus  vivunt,  et  hoc  dicunt  se  facere  ex  privilegio  Imperatoris; 
et  isti  similiter  sunt  de  populo  Eomano  :  ut  faciunt  Veneti.  Nam 
cum  illam  libertatem  ipsi  habere  se  dicant  ab  Imperio  Eomano, 
et  privilegio  quodam  modo  precario  tenent  ab  eo,  et  posset 
privilegium  illud  revocare,  quando  vellet;  cum  ei  liceat  mutare 
voluntatem  suam.... Quidam  sunt  populi  qui  non  obediunt  principi 
tamen  asserunt  se  habere  libertatem  ab  ipso  ex  contractu  aliquo,  ut 
provinciae,  quae  tenentur  ab  ecclesia  Eomana,  quae  fuerunt  donatae 
ab  Imperatore  Constantino... adhuc  dico  istos  de  populo  Eomano 


OF  EUROPEAN  POLITICAL  IDEAS  357 


quality  of  Bartolus'  mind — law  is  one  thing  and  fact 
another.  In  the  first  place,  writing  in  Papal  tem- 
tory  he  has  no  doubt  of  the  Pope's  final  supremacy; 
the  people  have  no  power  now,  however  much  the 
lex  regia  originally  reserved  to  them ;  the  electors 
alone  elect,  and  the  Pope  alone  can  deprive;  the 
Pope  has  only  transferred  authority  to  the  secular 
prince'.    The  Pope  is  above  the  civil  law.    Any  law 

esse.  Nam  ecclesia  Romana  exercet  in  illas  ten-as  jurisdictionem 
quae  erat  Imperii  Bomani,  et  istud  fatentur ;  non  ergo  desinunt 
esse  de  populo  Eomano ;  sed  administratio  istarum  provinciarum 
est  alteri  concessa....Jurisdictio  in  clericos  est  concessa  totaliter 
Papae,  desinuntne  propter  hoc  clerici  esse  cives  Eomani  ?  Et  idem 
dice  de  istis  aliis  Eegibus  et  Principibus,  qui  negant  se  esse 
subditos  Regi  Eomanorum  ;  ut  Eex  Francie,  Anglie  et  similes.  Si 
enim  fatentur  ipsum  esse  dominum  universalem,  licet  ab  illo 
universali  domino  se  subtrahant  ex  privilegio,  vel  consimili,  non 
desinunt  esse  cives  Eomani,  propter  ea  quae  dicta  sunt ;  et  secundum 
hoc  quasi  omnes  gentes  qui  obediunt  sanctae  Romanae  ecclesiae 
sunt  de  populo  Eomano.  Et  forte  si  quis  diceret  dominum 
Imperatorem  non  esse  dominum  et  monarcham  totius  orbis,  esset 
haereticus"  {De  captivis  et  postliminio,  vi.  237). 

1  "  Primo  fuit  imperium  Babylonis.  Secundo  fuit  imperium 
Persarum  et  Medorum.  Tertio  fuit  imperium  Graecorum.  Quarto 
fuit  imperium  Eomanorum.  Ultimo  adveniente  Christo  istud 
Eomanorum  imperium  incoepit  esse  Christi  Imperium  ;  et  ideo 
apud  Christi  vicarium  est  uterque  gladius,  spirituals  et  temporalis. 
Christus  enim  est  Lapis  abseissus  sine  manibus  cujus  regnum  non 
dissipabitur  de  quo  prophetavit  Daniel. ...Dico  ergo  quod  ante 
Christum  Imperium  Eomanum  dependebat  ab  eo  solo  ;  et  Imperator 
recte  dicebatur,  quod  dominus  mundi  esset,  et  quod  omnia  sua  sint. 
Post  Christum  vero  Imperium  est  apud  Christum  et  ejus  vicarium 
et  transfertur  per  Papam  in  principem  secularem  "  (Tractatus  super 
"  Ad  reprimendurn,"  x.  91).  There  is  a  passage  in  some  sixteenth 
century  writer — I  think  Frangois  Hotman,  but  cannot  give  the 
reference — which  asserts  that  Bartolus  had  no  real  belief  in  the 
Papal  right,  but  plane  ludit,  saying  himself  it  was  only  because  he 
was  too  near  Eome  to  deny  it. 


358  BARTOLUS  AND  THE  DEVELOPMENT 

that  makes  other  folk  more  audacious  or  the  clergy 
more  timid  is  ipso  facto  invalid  (what  a  pity  it  isn't 
so  now !). 

A  text  of  the  Decretale  is  as  good  an  authority 
to  cite  as  one  from  the  code.  He  proves  that  an 
oath  to  alienate  any  part  of  '  regality '  is  invalid  by 
a  quotation  from  Innocent  III.  in  the  Decretale. 
Elsewhere  he  finds  sufficient  authority  in  a  gloss  of 
Innocent  IV.  on  a  text  of  the  Decretale^.  His  treatise 
on  the  differences  between  civil  and  canon  law  is  in 
no  sense  a  treatise  on  the  laws  of  two  societies,  but 
rather  a  disquisition,  only  less  acrimonious — like  that 
on  the  rules  of  the  civil  and  military  departments  of 
India. 

Any  one  subject  to  the  Church  is  in  a  sort  a 
member  of  the  Empire,  and  everyone  who,  willingly 
or  not,  uses  its  law.  The  truth  is  that  the  Code,  as 
crystallised  by  Justinian,  is  not  an  ancient  or  merely 
secular  document — it  is  post-Augustinian,  and  the 
conception  in  it  of  the  place  of  Christianity  is  emi- 
nently mediaeval.  The  Holy  Eoman  Empire  was  in 
fact  the  creation  of  Justinian  even  more  than  it  was 
of  Charles  the  Great ;  and  later  Papalists  are  able  to 
make  great  play  with  the  ecclesiastical  provisions  of 
the  civil  law ;  and,  indeed,  this  is  doubtless  the  reason 
why  Bartolus  tells  us  that  even  at  Rome  there  were 
more  legists  than  canonists.  I  do  not  mean  that 
Justinian's  views  were  Hildebrandine,  but  they  were 
mediaeval,  and  the  law  of  the  Church  is  a  part  of  the 

'  It  is  to  be  observed  that  to  Bartolus  the  Decretale  is  still 
known  as  merely  a  body  of  '  extra vagants.' 


OF  EUROPEAN  POLITICAL  IDEAS 


359 


law  of  the  Empii-e.  Church  <and  State  are  not  sepa- 
rate societies,  but  the  same  community  is  one  or  the 
other  according  to  the  point  of  view,  and  there  are 
of  course  special  laws  for  one  class — the  clergy. 

All  this  goes  to  shew  how  Bartolus  made  straight 
the  path  of  his  successors.  By  treating  the  Papal 
and  Imperial  Laws  as  part  of  one  system,  and  making 
the  civil  law  a  sort  of  ideal  (often  contradicted  by 
facts)  he  paved  the  way  for  those  who  in  a  later  age 
were  to  treat  of  laws  in  general,  natural,  ecclesiastical, 
civil,  all  as  one  part  of  the  State;  and  while  they 
acknowledged  the  supremacy  of  the  civil  law  as  a 
norm  or  ideal,  found  no  difficulty  in  tempering  it 
either  by  particular  statutes  or  the  principles  of  the 
canonists  and  theologians. 

The  commentaries  of  the  civilian  Bartolus  are 
the  condition  of  those  treatises,  mainly  Spanish,  of 
the  sixteenth  century,  of  writers  like  Soto,  Navarra 
or  Covan'uvias;  or  to  quote  the  best  known  example, 
Suarez.  "What  they  made  into  one  system  Bartolus 
foreshadowed  by  his  mode  of  treating  the  Corpus 
Juris  Civilis. 

But  this  is  not  all.  The  Pope  is  not  the  only 
fact  in  the  lawyer's  universe.  There  are  the  states, 
more  especially  the  Italian  cities.  Here  Bartolus 
makes  the  great  distinction,  which  Gierke  himself 
declares  to  be  of  such  importance  in  paving  the  way 
for  the  modern  doctrine  of  sovereignty.  He  divides 
his  states  into  those  which  do  and  those  which  do 
not  as  a  fact  recognise  a  superior.  Law  may  be  with 
the  Emperor,  but  fact  is  with  the  cities ;  conse- 
quently even  Imperial  laws  do  not  abrogate  their 


360         BARTOLUS  AND  THE  DEVELOPMENT 


statutes,  because  they  are  merely  facts,  and  the 
Emperor  is  presumed  to  be  ignorant  of  facts. 

Since,  moreover,  these  facts  exist,  in  such  places 
the  whole  sovereignty  is  imperialiter  in  them,  as  our 
own  Richard  II.  thought ;  yet  Bartolus  was  a  true 
Italian,  and  never  worried  about  the  ultramontane, 
barbarian  peoples.  It  was  of  Italian  cities  that  he 
was  thinking. 

This  was  the  origin  of  his  treatise  on  reprisals' 
written  expressly  to  consider  conditions  in  which 
states  were  de  facto  independent,  and  resting  there- 
fore, as  he  says,  rather  on  divine  than  positive  law 
(whether  civil  or  canon).  That  treatise  had  a  good 
deal  to  do  with  the  development  of  international 
law,  and  a  perusal  of  it  along  with  Albericus  Gentilis 
or  Grotius  will  shew  how  far  this  was  the  case. 

Thus,  then,  Bartolus  qualified  the  purely  legal 
character  of  the  civil  law  by  insisting  on  its  wider 
aspects.  At  the  same  time  that  he  treated  of  all 
questions  on  a  basis  largely  legal,  he  prepared  the 
way  for  the  civil  law  to  become  the  received  juris- 
prudence of  most  countries  by  shewing  it  to  be  de 

'  "  Kepresaliarum  materia  nec  frequens,  nec  quotidiana  erat 
tempore  quo  in  statu  debito  Eomanum  vigebat  Imperium,  ad  ipsum 
enim  tanquam  ad  summum  monarcham  habebatur  regressus,  et 
ideo  banc  materiam  legum  doctores  et  antiqui  juris  interpretes 
minime  pertractaverunt.  Postquam  vero  peccata  nostra  meruerunt 
quod  Romanum  Imperium  prostratum  jaceret  per  tempora  multa, 
et  Eeges  et  principes  ac  etiam  civitates,  maxime  in  Italia,  saltern  de 
facto  in  temporalibus  dominum  non  agnoscerent,  propter  quod  de 
injustitia  ad  superiorem  non  potest  haberi  regressus,  coeperunt 
represaliae  frequentari  et  sic  effecta  est  frequens  et  quotidiana 
materia"  (Be  Represaliis,  x.  117). 


OF  EUROPEAN  POLITICAL  IDEAS 


361 


facto  independent  of  the  Emperor.  He  combined  it 
with  the  canon  law  and  the  scholastics  in  his  com- 
mentaries, and  paved  the  way  for  the  universal 
systems  of  the  sixteenth  century  out  of  which  grew 
both  modern  politics  and  international  law,  while  he 
definitely  recognised  the  actual  attributes  of  terri- 
torial sovereignty  wherever  they  existed  as  a  factK 

Thus  he  helped  forward  the  assumption  of  the 
family  of  the  states  independent,  self-sufficient,  yet 
recognising  the  common  jus  gentium,  which  is  the 
foundation  of  modern  Europe. 

Two  only  of  his  special  treatises  need  be  mentioned. 
The  work  De  Regimine  Givitatis  is  written,  he  says, 
because  the  universales  doinini  often  ask  the  opinion 
of  lawyers  or  government;  and  though  the  universalis 
dominus  has  changed,  the  sovereign  people  seems 
still  to  do  the  same.  It  is  written  for  lawyers,  and 
though  well  aware  of  the  views  of  Giles  of  Rome  and 
Aristotle,  he  will  take  nothing  for  granted,  but  tests 
their  opinion  by  the  law  and  gives  his  own  view. 
What  is  remarkable  is  the  sanity  of  his  judgment 
and  desire  to  stick  to  his  facts.  He  agrees  that 
in  theory  monarchy  is  the  best  form  of  government, 
but  we  must  consider  place  and  circumstances. 
Unity,  its  great  aim,  must  not  be  sacrificed  to  jus- 
tice. Like  all  true  libertarians  he  puts  character 
above  efficiency.    The  pursuit  of  the  latter  as  its 

1  "  Equiparatio  jurisdictionis  ad  dominum :  Si  princeps  con- 
cederet  tibi  universaliter  unum  territorium,  videtur  tibi  concedere 
universaliter  jurisdictionem  ;  quia  sicut  ille  qui  concedit  universale 
territorium,  videtur  concedere  jurisdictionem,  quae  est  idem  quod 
dominum  alicujus  rei  particularis  "  (i.  53). 


362 


BARTOLUS  AND  THE  DEVELOPMENT 


own  end  always  leads  straight  to  Machiavelli.  He 
argues  that  we  must  consider,  not  abstract  prin- 
ciples, but  the  probable  effect  of  government  on  the 
citizens.  States  are  of  three  sizes :  a  small  city 
cannot  afford  a  court  without  oppression,  and  ought 
to  have  a  direct  democracy — or  rather  the  democracy 
should  delegate  power  to  officials.  He  knows  nothing 
of  a  representative  assembly.  It  is  worthy  of  note 
that  practical  experience  of  the  evils  of  excessive 
taxation  and  tyi'anny  in  a  small  city  should  be  the 
real  ground  of  this  opinion.  The  second  class  of 
cities,  with  some  territory  beyond,  like  Venice  and 
Florence,  should  be  governed  by  an  aristocracy, 
who  will  combine  fair  administration  with  the 
knowledge  acquired  only  by  a  governing  class.  The 
third  class,  or  country  states,  as  we  should  call 
them,  require  a  monarch.  He  prefers  election  to 
succession,  as  being  magis  divinum,  for  the  heart  of 
electors  is  in  the  hand  of  God  (would  he  say  so 
now  ?) ;  otherwise  unity  will  be  impossible,  and  re- 
bellion will  become  inextinguishable.  This  is  clearly 
the  way  in  which  facts  reflected  themselves  in  the 
writer's  mind.  The  larger  states,  every  one  of  them, 
only  acquired  unity  by  going  through  a  period  of 
despotism :  Venice  remained  for  ages  a  splendid  ex- 
ample of  a  ruling  aristocracy ;  and  where  the  single 
cities  fell  into  the  hands  of  a  tyrant,  they  endured 
the  evils  of  pure  monarchy  with  few  or  none  of  its 
advantages.  It  has  been  said  that  in  this  doctrine 
of  the  relativity  of  political  theories  Bartolus  was  in 
advance  of  his  time  and  had  little  influence,  and  that 
Montesquieu  was  the  first  who  took  up  the  same 


OF  EUROPEAN  POLITICAL  IDEAS 


363 


notion  ^  But  I  think  that  Savonarola  had  it,  for  he 
argues  that  while  monarchy  is  the  best  form  of 
government,  as  is  proved  by  the  Papacy,  for  Florence 
a  democracy  is  the  only  way  to  secure  justice;  nor 
are  there  wanting  other  writers  who  are  by  no  means 
exclusive  in  favouring  one  form  of  government. 

Indeed,  one  of  Bellarmine's  arguments  for  the 
Papal  power  was  that  Aristotelian  arguments  that 
might  do  for  a  city  state  could  have  no  reference  to 
what  was  in  reality  an  empire.  Machiavelli  himself 
was  really  a  republican,  and  only  desired  a  prince  as 
a  saviour  of  society.  At  the  same  time,  it  is  doubt- 
less true  that  Bartolus  differed  fi-om  most  writers 
(like  St  Thomas)  of  his  own  or  succeeding  days  in 
regarding  circumstances,  history,  and  size  as  of  more 
importance  in  fixing  the  form  of  government  than 
abstract  reasoning  and  ideal  perfection.  But  one 
thing  is  clear,  he  feared  tjrrants  in  the  Italian  cities. 
Probably  his  treatise  On  Tyranny"^  was  the  best 
known  of  his  works  to  all  but  specialists.  It  is 
remarkable  for  what  it  omits  no  less  than  what  it 
contains.  Unlike  the  numerous  writers  of  the  next 
centuries,  he  does  not  discuss  how  far  resistance  to  a 
tyrant  in  defence  of  religion  is  allowable ;  for  he  is 
concerned  with  tjTanny  in  places  at  least  nominally 
subject  to  the  Emperor  or  the  Pope.  There  is 
therefore  in  appearance  none  of  the  originality  or 

1  Cf.  C.  Salvemini,  La  Teoria  del  Bartolo  da  Sassoferrato  sulle 
Costituzioni  politiche  in  his  Stiidi  Storici. 

2  On  the  whole  history  of  the  treatment  of  tyranny  cf.  Lossen's 
valuable  lecture,  Die  Lehre  von  Tyrannenmord  in  der  christlichen 
Zeit. 


364  BARTOLUS  AND  THE  DEVELOPMENT 


brilliancy  which  startles  the  reader  of  John  of 
Salisbury  two  centuries  earlier,  or  the  audacity  of 
Jean  Petit  nearly  a  century  later.  Yet  for  all  that 
Bartolus'  tractate  was  of  great  influence;  for  it  fixed 
the  method  of  discussion  for  a  couple  of  centuries. 

He  introduced  the  gi-eat  distinction,  not  to  be 
found  in  St  Thomas  or  earlier  writers,  between  the 
tyrannus  absque  titulo  and  the  tyrannus  de  exercitio. 
The  former  is  the  usual  Greek  tyrant  who  gets  power 
without  the  laws.  But  Bartolus,  as  always,  was  con- 
cerned with  facts,  and  wanted  to  point  out  the  actual 
danger  of  tyranny  under  the  forms  of  law,  whether 
it  be  mere  despotism  or  oppression.  He  feared  alike 
a  Cosimo  de'  Medici  and  an  Eccelin  Romano.  Con- 
sequently he  dwells  much  on  the  point  that  t)T:anny 
has  many  disguises,  and  points  out  its  various  forms. 
It  is,  by  the  way,  notable  that  the  suppressing  con- 
gregationes  etiam  licitae  is  one  of  these.  These 
evidences  of  the  tjrranny,  and  still  more  the  two 
kinds  of  tyrant,  are  the  commonplaces  of  discussion 
for  three  centuries ;  and  Albericus  Gentilis  recognises 
this  in  one  place.  It  is  noteworthy  that  Bartolus 
decides  that  a  t3T:ant  absque  titulu  is  guilty  of  treason 
as  ofifending  against  the  Lex  Julia  de  Majestate, 
while  a  tyrant  de  exercitio  falls  under  the  Lex  Julia 
de  Vi  Publica. 

Can  this  have  any  reference,  remote  or  indirect, 
to  the  temper  of  the  mind  which  condemned  Charles  1. 
for  treason  against  his  people  ?  At  any  rate  Bartolus' 
view  of  a  tyrant  as  to  some  extent  a  rebel — of  course 
against  a  'prince' — must  be  taken  in  connection  with 
his  treatment  of  rebellion  and  declaration  that  a 


OF  EUROPEAN  POLITICAL  IDEAS 


365 


rebel  may  be  killed  at  sight  without  process  of  law. 
This  occurs  in  the  tractate  on  the  Ad  reprimendum 
of  Henry  VII.,  and  must  surely  have  had  to  do  with 
the  views  of  Jean  Petit.  The  latter  held,  as  we  all 
know,  that  a  tyrant — by  which  was  meant  a  traitor — 
might  be  killed  by  anyone ;  and  this  view  was  con- 
demned by  the  Council  of  Constance.  Now,  though 
Jean  Petit  says  distinctly  he  is  not  a  jurist,  and 
omits  to  quote  Bartolus  as  an  authority,  it  seems 
almost  certain  that  the  great  authority  of  the  latter 
and  the  general  influence  of  his  views  must  have  had 
a  real,  if  unconscious  or  at  least  indirect  effect  on  the 
mind  of  Jean  Petit'.  However  this  may  be,  there 
is  no  doubt  that  one  chief  point  in  that  great  dis- 
cussion which  filled  the  sixteenth  century,  what 
must  be  done  with  a  t3T:ant,  turned  upon  Bartolus'  dis- 
tinction between  the  man  who  was  legally  a  usurper 
and  the  king  who  was  actually  an  oppressor,  and 
that  later  writers  consciously  depend  on  him.  Fur- 
ther he  must  have  the  credit  of  foreseeing  and 
desiring,  so  far  as  possible,  to  ward  off  the  danger  of 
that  age  of  the  despots  in  Italy,  from  which  not  all 
its  culture  can  ever  remove  the  stains  of  cruelty  and 
corruption.  Moreover,  Bartolus  saw  the  evils  of  the 
ungoverned  state  of  Central  Italy  with  the  Papacy 
at  Avignon.  He  deplored  the  multiplicity  of  tyrants 
in  Rome,  "  formerly  the  best,  now,  alas !  the  worst 
governed  city  in  the  world."  He  saw  with  a  reflect- 
ing eye  the  evils  of  his  day  rampant  or  incipient.  He 
distrusted  the  attempt  to  lay  down  purely  abstract 

1  Jean  Petit's  writing  and  the  relevant  discussion  fill  a  whole 
folio  volume  of  Dupin's  edition  of  Gerson's  works. 


366  BARTOLUS  AND  THE  DEVELOPMENT 


systems  of  politics,  which  has  been  the  besetting 
sin  of  reformers  from  the  days  of  Dante,  who  had 
just  written  the  swan-song  of  the  empire,  to  those  of 
Rousseau  or  Karl  Marx. 

He  demanded  practical  remedies,  by  which  he 
meant,  not  mere  rule  of  thumb,  but  forms  and 
measures  of  government  carefully  thought  out  with 
a  view  to  actual  and  historical  circumstances.  He 
had  no  illusion  about  schemes  of  perfect  justice  and 
freedom,  but  desired  those  which  under  particular 
conditions  would,  in  all  probability,  have  the  best 
normal  effect  on  human  life  and  character.  He 
is  thus  removed  at  once  from  the  system-monger 
and  the  Machiavellian. 

Neither  abstract  reason  nor  a  conscienceless  saviour 
of  society  came  within  his  view ;  yet  he  knows  that 
without  intelligence  human  affairs  will  fall  into  con- 
fusion, that  the  sentiment  of  philanthropy  is  not 
enough ;  and  he  is  aware,  like  Machiavelli,  that 
circumstances  alter  cases,  and  desperate  conditions 
may  require  desperate  remedies.  He  is  the  type  of 
the  sane  reformer  who  considers  and  reasons  upon 
facts ;  for  Machiavelli's  own  doctrine,  so  positive  in 
appearance,  if  rigidly  interpreted,  becomes,  and  in- 
deed became,  only  another  system,  that  of  '  reason  of 
state '  supplanting  conscience  and  abolishing  law, 
both  natural  and  civil. 

It  is,  however,  by  a  jeu  d' esprit  that  many  people 
have  known  Bartolus  best;  the  title  is  Processus 
Satanae  contra  Divam  Virginem  coram  ludice  Jesu. 
This  once  famous  work  is  a  specimen  of  that  medi- 
aeval humour  which  is  to  us  both  grotesque  and 


OF  EUROPEAN  POLITICAL  IDEAS 


367 


unintelligible,  and  at  times  seems  almost  blasphe- 
mous. The  little  book  is  the  supposed  account  of  a 
trial  with  Christ  as  Judge  between  Satan  and  the 
Virgin  Mary.  Satan  demands  the  condemnation  of 
the  human  race,  and  the  Virgin  defends  and  eventu- 
ally secures  acquittal.  The  piece,  as  fooling,  appears 
very  poor.  It  illustrates,  however,  the  way  in  which 
the  Virgin  had  entirely  supplanted  Christ,  to  the 
mediaeval  mind,  as  the  real  mediator;  for  our  Lord 
appears  as  judge  merely.  It  also  illustrates  the  way 
in  which  the  rules  of  the  civil  and  canon  laws  are 
treated  as  equally  binding  authorities,  and  of  course 
the  forensic  view  of  the  Atonement,  which  perhaps 
reaches  its  limit  in  this  piece.  There  is  an  interesting 
citation  of  the  famous  text  "  Quod  principi  placuit 
legis  habet  vigorem."  The  judge  has  fixed  a  Wed- 
nesday for  the  hearing  of  the  case :  to  this  the  Devil 
objects  as  being  a  dies  non.  But  he  is  told  that  the 
prince  is  above  the  rules  of  law,  and  on  the  doctrine 
of  imperial  pleasure  the  date  is  retained. 

But  is  this  tract  Bartolus'  work  at  all  ?  It  is 
printed  so  in  all  collections.  But  an  editor  in  the 
seventeenth  century  denies  the  fact.  And  although 
Savigny  in  his  extremely  unilluminating  account  of 
Bartolus  appears  ignorant  that  the  authenticity  has 
been  questioned,  I  think  that  it  can  hardly  be  genuine. 
Goldast  points  out  that  the  date  alone  (1311)  makes 
the  attribution  to  Bartolus  impossible ;  for  he  was 
not  born  till  (1312),  although  many  authorities  make 
him  earlier.  This  alone  is  not  conclusive,  for  nothing 
would  be  easier  than  for  a  couple  of  X's  to  slip  out 
in  the  manuscript,  and  he  might  easily  have  written 


368  BARTOLUS  AND  THE  DEVELOPMENT 


it  in  1330.  If  he  did,  we  may  feel  that  at  any  rate 
the  quality  of  undergraduate  squibs  has  improved 
since  the  day  of  Bartolus.  The  same  writer  also 
points  out  how  the  mistake  occurs ;  which,  he  says, 
was  due  to  interpreting  the  letters  BAR  as  Bartolus, 
whereas  it  really  meant  Andreas  Barbatius.  The 
objection  to  this  is  that  Barbatius  appears  to  have 
been  later  still  in  date,  though  there  may  have  been 
one  earlier.  So  far  as  internal  evidence  goes,  it 
seems  to  me  against  Bartolus ;  the  whole  thing  is 
thin  and  jejune  and  pedantic;  it  neither  has  the 
gravity  nor  the  sense  of  reality  nor  the  freshness  and 
vitality  which  occur  in  his  other  work,  and  it  seems 
to  me  altogether  the  work  of  an  inferior  mind.  This 
of  course  is  not  conclusive — the  minds  of  students, 
and  of  some  who  are  not  students,  were  very  much 
inferior  when  they  were  undergraduates  to  what  they 
became  afterwards.  At  the  same  time  I  think  the 
balance  inclines  slightly  to  the  negative  side. 

There  is  one  more  interesting  piece  of  higher 
criticism  in  regard  to  Bartolus.  This  comes  from 
the  pen  of  li.  P.  Lancellotti.  He,  too,  was  a  Perugian 
of  the  sixteenth  century,  and  he  is  concerned  to 
defend  his  countrjrman  Baldus  from  an  unmerited 
slur.  The  story  is  this.  On  one  occasion  Baldus 
and  Bartolus  had  a  dispute  on  a  point  of  law. 
The  latter  cited  a  particular  passage  of  the  Code ; 
Baldus  alleged  that  it  was  a  misquotation.  Bartolus, 
whose  memory  was  like  a  phonograph,  felt  sure  he 
was  right,  and  recourse  was  had  to  copy.  This  con- 
firmed Baldus  to  the  great  discomfiture  of  the  older 
man.    But  he  was  not  so  easily  outdone.    He  felt 


OF  EUROPEAN  POLITICAL  IDEAS  369 


SO  certain  of  his  recollection  that  he  suspected  foul 
play,  and  accordingly  sent  or  went  to  consult  the 
original  MS.  at  Pisa.  He  triumphed,  and  was  able 
to  shew  that  Baldus  had  been  tampering  with  the 
MSS.,  merely  to  secure  a  dialectical  victory.  There- 
upon Baldus  was  flogged,  some  said  on  the  nose, 
others  said  elsewhere,  others  in  effigy;  others  that 
Bartolus  begged  him  off.  At  any  rate,  Baldus  al- 
luded to  it  in  his  own  writings,  for  in  commenting 
on  the  law  he  used  the  words  "  Propter  hanc  legem 
ego  fui  factus  episcopus."  This  alluded  to  the  habit 
of  putting  on  the  floggee  a  cap  something  like  a 
mitre.  Lancellotti  subjects  this  story  to  a  criticism 
which  for  lucidity,  persuasiveness,  and  weight  might 
be  the  work  of  Dr  Driver  or  the  Bishop  of  Ely.  He 
points  out  how  many  discrepancies  there  are  in  the 
story  of  the  flogging;  how  difficult  it  must  have 
been  to  tamper  with  all  the  MSS.  in  so  large  a  uni- 
versity as  Perugia.  He  adds  that  had  Baldus  been 
so  deeply  humiliated,  he  would  be  unlikely  to  have 
spoken  in  such  constant  terms  of  praise  of  his  master 
whenever  he  mentions  him.  Two  passages  in  which 
he  seems  to  take  a  more  hostile  line  are  examined 
and  explained — for  nobody  ever  supposes  he  held  the 
same  legal  views  on  every  question.  Lastly  Lancel- 
lotti relates  how  he  met  someone  in  Rome  and  defied 
him  to  find  the  above-mentioned  passage  in  which 
Baldus  cryptically  related  his  misfortunes.  This  friend 
declared  it  to  be  well  known,  but  after  long  searching 
gave  up  the  task  in  vain.  Then  he  points  out  how 
Bartolus  did  have  a  dispute  with  someone  over  a 
point,  and  they  both  agreed  without  arri^re  pensee 
V.  24 


370 


BARTOLUS  AND  THE  DEVELOPMENT 


to  go  to  Pisa  and  consult  the  original — only  there 
was  no  forgery,  no  flogging,  and  no  Baldus  in  the 
matter.  The  intellectual  power  and  ingenuity  of 
this  criticism  and  its  thoroughness  are  far  in  advance 
of  the  age  or  of  the  importance  of  the  actual  subject. 
But  they  are  perhaps  worth  noting. 

Yet  the  world  to  which  such  things  could  matter 
has  long  vanished.  Arid  indeed  seem  to  us  the 
controversies  of  men  who  are  barely  names.  "  Dust 
and  ashes,  dead  and  done  with,"  the  matter  of  the 
charge,  the  subject  of  the  dispute,  and  the  doctored 
antagonists.  We  hardly  care  to  imagine  that  crowded 
lecture-room  which  Bartolus  one  day  declared  to  be 
empty  because  his  real  audience,  Baldus,  was  absent : 
nor  does  it  interest  us  to  be  told  that  once  the  pupil 
so  browbeat  the  professor  that  he  had  to  take  a  day 
to  consider  the  point,  being  unequal  to  immediate 
reply.  He  whose  fame  filled  Europe  with  its  echoes 
has  not  now  even  his  collected  works  at  our  great 
university  libraries.  Gone  are  the  law-schools  of  the 
middle  ages — gone,  it  seems,  more  than  their  archi- 
tecture, their  religion,  or  even  their  dress.  The 
world  of  ideas  in  which  they  lived  seems  strange  to 
us ;  nor  can  we  conceive  it  needful  for  a  lawyer  even 
to  consider  the  question  of  what  were  the  property 
rights  of  Lazarus  when  he  rose  from  the  dead\ 
Bartolus'  treatment  of  this  topic  is,  I  should  say, 
another  reason  against  his  having  written  the  Pro- 
cessus :  the  tone  is  quite  different.  It  is  hard  for 
us  to  gain  even  a  mental  image  of  that  mind,  so 
eminently  doctus  in  utroque  jure,  which  held  in  its 

1  As  a  matter  of  fact,  Mr.  H.  G.  Wells  in  When  the  Sleeper 
Wakes  does  consider  a  very  similar  question. 


OF   EUROPEAN  POLITICAL  IDEAS  371 

gi-asp  the  scholastic  theology,  the  civil  and  canon 
law;  which  quotes  Justinian,  De  Summa  Trinitate 
et  Fide  Catholica,  to  prove  that  gold  is  the  highest 
colour  in  heraldry,  and  surveys  the  affairs  of  the 
whole  human  race  from  a  standpoint  at  once  more 
and  less  juristic  than  that  of  the  modem  lawyer. 
For  when  everything  is  seen  under  legal  forms,  the 
notion  of  law  is  itself  wider  and  more  universal  than 
that  of  modem  legalism.   If  you  narrow  theology  and 
refrigerate  ethics,  you  humanise  law  by  the  process. 
The  point  is  that  Bartolus,  in  spite  and  perhaps 
because  of  our  having  forgotten  him,  is  alive  in  the 
world  of  to-day,  alive  in  its  international  code,  in  its 
notions  of  territorial  sovereignty,  and  the  tone  of 
political  discussions  at  any  rate  but  recently  ended. 
To  influence  the  modem  world  the  apparently  closed 
system  of  the  civil  law  had  to  develope  and  embrace 
fresh  elements.  Like  the  Roman  Church,  in  Newman's 
phrase, "  She  changes  that  she  may  remain  the  same." 
One  of  the  chief  minds  which  helped  in  this  neces- 
sary developement  was  that  of  Bartolus :  he  helped 
to  make  it  possible  to  '  receive '  the  civil  law,  and 
while  acknowledging  allegiance  to  the  ancient  world 
to  adopt  more  or  less  unconsciously  much  that  was 
of  Christian  and  mediaeval  origin ;  he  influenced  the 
political  Renaissance  of  Europe,  and  he  helped  to 
make  it  a  true  developement,  even  where  it  was  dis- 
guised under  the  form  of  a  revolution.    I  do  not  say 
that  his  work  was  always  beneficial,  or  that  freedom 
did  not,  as  Stubbs  says,  suffer  in  all  places  and  at  all 
times  by  the  Roman  law ;  indeed  some  of  our  dangers 
to-day  arise  from  a  conception  of  societies  and  of  the 

24—2 


372 


BARTOLUS 


individual,  which  is  abstract  and  Latin  instead  of 
Teutonic  and  i-eal.  But  at  any  rate,  the  world  did 
so  develope,  and  Bartolus  was  one,  if  not  the  main 
link  in  the  chain  of  causes. 

How  far  his  mind  was  gi-eat  or  truly  original  let 
others  say,  more  skilled  in  law.  But  I  am  sure  that 
he  is  one  of  those  minds  which  help  to  carry  over  to 
one  age  the  thoughts  of  another,  and  transmit  by 
transmuting  the  intellectual  heritage  of  their  day. 
And  so  he  unites  us  both  to  the  world  he  lived  in, 
and  the  law  he  interpreted.  He  speaks  to  us  from 
kinship  with  the  schoolmen  on  the  one  hand  and  the 
Caesars  on  the  other.  He  helps  us  to  see  how  the 
bed  of  that  river  Tiber,  on  which  he  once  discoursed, 
has  carried  along  with  its  soil  the  hopes  and  the 
thoughts  and  the  dreams  of  men  for  longer  than  we 
care  to  think.  Even  England  could  not  quite  escape 
the  influence  of  the  Roman  law;  and  even  Roman 
law  could  not  remain  merely  Roman  or  purely  legal, 
and  these  two  facts  are  the  key,  not  indeed  to  the 
reality,  but  largely  to  the  form  of  the  intellectual 
world  even  of  to-day.  In  the  structural  develop- 
ment of  society  and  the  fundamental  topics  of  human 
discussion  there  has  been  more  continuity  than  in 
outward  history;  and  despite  all  their  differences 
the  thoughts  of  men  form  a  more  living  unity  than 
their  empires  or  even  their  roads.  Bartolus  may  or 
may  not  be  interesting,  or  great,  or  important ;  but 
I  am  sure  that  he  is  significant.  I  am  sure  that  it 
is  by  trjdng  for  a  little  to  think  his  thoughts  that  we 
shall  be  better  able  to  know  ourselves  ^ 

*  The  Lyons  edition  ends  with  a  colophon  with  the  device 
TvCidi  aeavrdv,  while  each  volume  begins  with  the  lion  among  bees 
"  de  forte  dulcedo." 


APPENDIX  A 


EXTRACTS  FROM  STATUTES  RELATING  TO 
THE  SQCCESSION 

The  progress  of  the  idea  of  inherent  right  and  the 
complete  decay  of  the  doctrine  of  election  may  be 
illustrated  from  the  statutes  passed  between  1483  and 
1603,  which  attempt  to  settle  or  declare  the  succession. 

(1)  In  the  titulus  regius,  which  gave  the  Crown 
to  Richard  III.,  we  see  the  two  notions  of  elective 
kingship  and  title  by  inheritance  blended  together.  It 
is  noteworthy  that  the  statute  seems  to  regard  Parlia- 
ment in  the  light  of  a  supreme  court  competent  to 
declare  the  law  without  appeal,  rather  than  as  a 
legislative  body  creating  new  law.  Parliament  claims 
no  right  to  alter  the  succession,  but  merely  to  declare  it, 
so  as  to  remove  perplexity. 

"  We  consider  that  ye  be  the  undoubted  son  and 
heir  of  Richard,  late  Duke  of  York,  very  inheritor  of 
the  said  crown  and  dignity  royal,  and  as  in  right  King 
of  England  by  way  of  inheritance ..and  by  this  our 
writing  choose  you  High  and  Mighty  Prince,  our  King 
and  Sovereign  Lord.     To  whom  we  know  it  apper- 

taineth  of  inheritance  so  to  be  chosen  We  pray  and 

require  your  most  noble  grace  that  according  to  this 


374 


EXTRACTS  FROM  STATUTES 


election  of  us  the  three  estates  of  this  land  ;  as  by  your 
true  inheritance  you  will  accept  and  take  upon  you  the 
said  Crown  and  royal  dignity  with  all  things  thereunto 
annexed  and  appertaining  as  to  you  of  right  belong- 
ing as  well  by  inheritance,  as  by  lawful  election  

Albeit  that  the  right  title  and  estate  which  our 
Sovereign  Lord  the  King  Richard  the  Third  hath  to 
and  in  the  Crown... of  England... been  just  and  lawful 
as  grounded  upon  the  laws  of  God  and  of  nature ;  and 
also  upon  the  ancient  laws  and  customs  of  this  said 
realm  and  so  taken  and  reputed  by  all  such  persons  as 
been  learned  in  the  above  said  laws  and  customs ;  yet 
nevertheless  for  as  much  as  it  is  considered,  that  the 
most  part  of  the  people  is  not  sufficiently  learned  in  the 
above  .said  laws  and  customs,  whereby  the  truth  and 
right  in  this  behalf,  of  likelihood  may  be  hid  and  not 
clearly  known  to  all  the  people,  and  thereupon  put  in 
doubt  and  question.  And  over  this,  how  that  the  court 
of  ParUament  is  of  such  authority  and  the  people  of 
this  land  of  such  a  nature  and  disposition,  as  experience 
teacheth,  that  manifestation  and  declaration  of  any  truth 
or  right  made  by  the  three  estates  of  the  realm  assembled 
in  Parliament,  and  by  the  authority  of  the  same  maketh 
before  all  other  things  most  faith  and  certain,  and 
quieting  of  men's  minds  removeth  the  occasion  of  all 
doubts  and  seditious  language,  therefore  &c." — Speed's 
History,  724. 

(2)  The  statute  granting  the  Crown  to  Henry  VII. 
is  far  different  in  its  businesslike  brevity  of  tone.  In 
this  the  authority  of  Parliament  to  do  what  it  wills 
with  the  succession  is  unmistakeably  implied. 

"Be  it  ordained  established  and  enacted  by  authority 
of  this  present  Parliament  that  the  inheritance  of  the 
Crowns  of  the  Realms  of  England  and  France  with 


RELATING  TO  THE  SUCCESSION  375 


all  the  preeminence  and  dignity  royal  to  the  same 
appertaining... be,  rest,  remain,  and  abide  in  the  most 
royal  person  of  our  now  Sovereign  Lord,  King  Henry 
the  Seventh  and  the  heirs  of  his  body... and  in  none 
other." — Statutes  of  the  Realm,  ii.  499. 

(3)  The  statute  declaring  Elizabeth  queen,  although 
it  admits  her  title  by  descent,  and  is  fulsome  in  tone, 
yet  has  no  scruple  about  regarding  an  Act  of  Parliament 
as  the  true  title  to  the  Crown.  The  second  clause 
ratifies  Henry's  testamentary  disposition  and  thus 
traverses  the  doctrine  of  hereditary  succession. 

"  Your  highness  is  rightly,  lineally  and  lawfully 
descended  and  come  out  of  the  blood  royal  of  this 

Realm  of  England  in  and  to  whose  princely  person 

 the  imperial  and  royal  estate,  place,  crown,  and 

dignity  are  and  shall  be  most  fully...  in  vested  and  incor- 
porated,  as  the  same  were  since  the  Act  of  Parliament 

made  in  the  thirty -fifth  year  of  King  Henry  the  Eighth. 

 For  which  causes  we  beseech  that  it  may  be 

enacted.  That  as  well  this  our  declaration... as  also  the 
limitation  and  declaration  of  the  succession  contained 
in  the  said  Act  (35  Hen.  VIII.  c.  1)  shall  stand  the 
law  of  this  realm  for  ever." — Statutes  of  the  Realm, 
IV.  358 ;  Prothero's  Statutes,  21. 

(4)  Lastly,  the  statute  recognizing  the  title  of 
James  I.  is  saturated  with  the  notion  of  inherent 
birthright,  and  knows  of  no  other  title.  The  act 
carefully  guards  against  granting  the  succession,  but 
claims  merely  to  declare  it. 

"A  most  joyful  and  just  recognition  of  the  immediate, 
lawful,  and  undoubted  succession  of  Descent  and  Right 
of  the  Crown. 

"  We  (being  bounden  thereunto  both  by  the  laws 
of  God  and  man)  do  recognize  and  acknowledge  (and 


376 


EXTRACTS  FROM  STATUTES 


thereby  express  our  unspeakable  joys),  that  immediately 
upon  the  dissolution  and  decease  of  Elizabeth... the 
imperial  crown  of  the  realm  of  England... did,  by 
inherent  birthright  and  lawful  and  undoubted  succes- 
sion descend  and  come  to  your  most  excellent  majesty, 
as  being  lineally,  justly,  and  lawfully  next  and  sole 
heir  of  the  blood  royal  of  this  realm  as  is  aforesaid." — 
Statutes  of  the  Realm,  iv.  107;  Prothero's  Statutes,  251. 


APPENDIX  B 


EXTRACTS  ILLUSTRATIVE  OF  POINTS  DISCUSSED 
IN  CHAPTERS  VIII.  AND  IX. 

1.  Popery,  as  involving  a  belief  in  the  deposing 
power,  a  disloyal  doctrine. 

"I  will  not  say  (though  it  has  been  said)  the 
Romanists'  faith  is  faction  and  their  religion  rebellion ; 
but  this  I  must  say,  that  they  teach  and  broach  such 
doctrines  as  are  very  scandalous  to  Christian  religion, 
and  very  dangerous  and  destructive  to  Kingdoms  and 
States ;  as  having  a  direct  and  natural  tendency  to 
sedition,  rebellion,  and  treason." — Duport,  Sermon  on  the 
Fifth  of  November,  64. 

"I  do  not,  I  will  not,  say  All  our  Romanists  are 
enclined  to  rebellion ;  I  doubt  not  but  there  are  many 
faithful  and  loyal  subjects  among  'em ;  but  this  I  must 
say,  As  long  as  they  own  a  foreign  jurisdiction,  either 
spiritual  or  temporal,  which  they  must  do  if  they  are 
thorough-paced ;  and  as  long  as  the  Pope  usurps  the 
power  to  depose  and  dispose,  to  depose  Kings,  and 
dispose  of  their  Kingdoms,  and  to  absolve  subjects  from 
their  oaths  of  supremacy  and  allegiance  ;  so  long  the 
Romish  religion  must  needs  have  a  natural  tendency  to 
disloyalty;  and  therefore,  if  Papists  be  good  subjects, 


378 


EXTRACTS  ILLUSTRATIVE  OF  POINTS 


no  thanks  to  their  Popery ;  and  I  fear,  'twill  be  hard 
for  'em  to  be  good  Catholics  at  Rome,  and  good  subjects 
at  home ;  for  if  they  be  so,  it  must  be  only  durante  bene 
placito,  so  long  as  the  Pope  is  well-pleas'd,  but  if  once 
he  be  angry  with  Kings  and  call  'em  heretics,  then  have 
at  'em  fowlers,  let  'em  look  to  themselves." — Ibid.  68. 

"  The  Reformation  of  our  Church  was  laid  upon  the 
subversion  of  one  of  the  most  fatal  and  pernicious 
principles  to  government,  that  any  religion  can  main- 
tain, namely  the  precarious  conditions  of  allegiance  to 
the  true  and  lawful  sovereign,  upon  the  falsehood  and 
ruin  whereof  our  constitution  both  civil  and  eccle- 
siastical was  founded  and  established." — Sacheverell, 
The  Political  Union,  54. 

The  following  passage  shews  how  the  whole  con- 
troversy between  the  temporal  and  spiritual  authority 
must  be  viewed  from  the  standpoint  of  an  age,  when 
the  enforcement  of  uniformity  in  religious  practice  was 
regarded  by  all  parties  as  the  duty  of  the  State. 

"No  king  or  prince  by  their  [the  Romanists']  doctrine 
can  truly  be  accounted  a  freeman  or  denizen  in  the  State 
wherein  he  lives,  seeing  no  king  can  have  so  much  as  a 
voice  or  suffrage  in  making  those  ecclesiastical  canons, 
unto  which  he,  his  people,  all  his  laws  temporal  and 
spiritual  are  subordinate  and  subject.  For  no  man 
could  think  him  to  be  a  freeman  in  any  corporation, 
that  has  no  voice  in  making  the  temporal  laws  by  which 
he  is  to  be  governed  or  at  least  in  choosing  such  of 
them  as  have  interest  in  the  making  of  Public  Laws." — 
Jackson,  Treatise  of  Christian  Obedience  (  Works,  ill.  909). 

"  The  J esuits  the  principal  authors  of  resistance  to 
all  higher  powers." — Ibid.  971. 

"  The  deposing  doctrine  and  placing  the  power  in 
the  people  is  but  the  spittle  of  the  Jesuits  which  our 


DISCUSSED  IN  CHAPTERS  VIII  AND  IX  379 


Whigs  and  Dissenters  have  picked  up." — Leslie,  The 
Wolf  stripped  of  his  Shepherd's  Clothing,  4. 

"Your  mobs  are  all  papists,  they  are  for  the 
deposing  power,  which  is  perfect  popery." — Leslie,  A 
Battle  Royal,  174. 

Papal  supi-emacy  divests  the  prince  of  his  absolute 
sovereignty,  of  his  legislative  power  and  renders  mon- 
archy insecure  of  possession  or  succession,  by  bereaving  it 
of  the  guard  of  the  laws,  of  the  strength  of  alliances,  oj 
the  fidelity  of  their  people.  Papal  supremacy  destructive  of 
the  people's  liberty  and  property. — The  Common  Interest 
of  King  and  People,  Chap.  vii. 

"  These  men  cry  out  against  Popery,  and  yet  profess, 
what  all  good  Protestants  esteem  the  most  malignant 
part  of  Jesuitism." — Dudley  Digges,  The  Unlawfulness 
of  Subjects  Taking  up  Arms,  64. 

2.    Identification  of  Papists  and  Dissenters, 

"  It  is  most  manifest,  that  all  our  late  horrid  civil 
wars,  rapines,  bloodshed  and  the  execrable  and  solemn 
murder  of  His  Late  Majesty,  and  the  banishment  of 
our  present  sovereign  were  effected  according  to  the 
fore-contrivance  of  the  Papists,  by  the  assistance  which 
the  Dissenters  gave  them  and  the  opportunities  they 
had  to  preach  them  into  rebellion  under  the  pretence 
of  a  thorough  Reformation,  that  all  late  commotions  and 
rebellions  in  Scotland  sprung  from  the  same  counsel  and 
conduct." — Foxes  and  Firebrands,  32. 

"  Let  us  now  come  to  take  a  view  of  the  younger 
antagonists  of  monarchy,  the  popular  supremacy  of 
Presbytery,  that  Lerna  Malorum,  that  revived  hydra 
of  the  Lake  of  Geneva,  with  its  many-headed  progeny. 
Anabaptists,  Quakers,  Levellers  &c.,  all  which  unnatural 
offspring  are  as  kind  to  their  dam  as  vipers,  and  as 


380        EXTRACTS  ILLUSTRATIVE  OF  POINTS 


inconsistent  with  monarchy,  as  they  pretend  to  be  with 
the  Papacy  (with  which  Presbytery  jostles  for  universal 
supremacy)  or  any  of  them  with  Loyalty,  Royalty  or 
true  religion." — Nalson,  Common  Interest  of  King  and 
People,  201. 

"  The  Puritans  were  mere  tools  to  the  Jesuits  (as  they 
are  to  this  day),  from  them  they  learned  the  deposing 
doctrine,  and  to  set  up  the  private  spirit  against  the 
Holy  Scriptures,  and  all  the  authority  of  the  Church." — 
Leslie,  The  Rehearsal,  No.  84. 

"  Sure  the  hand  of  Joab,  the  Jesuit  with  his 
King-killing  doctrine,  was  in  all  this,  and  every  one 
of  the  regicides  had  a  Pope  in  his  belly,  to  give  him 
a  dispensation,  and  absolve  him  from  his  oath  of  alle- 
giance."—Duport,  Sermon  on  Thirtieth  of  January,  11. 

"  Those  fra.tres  in  malo,  those  red-hot  fiery  zealots 
o'  both  sides ;  your  furious  hair-brained  fanatic,  and 
your  perfidious  disloyal  Loiolite :  I  join  'em  together, 
Bithus  cum  Bachio,  for  I  know  not  which  is  the  worse 
o'  the  two ;  and  I  think  they  plough  with  one  another's 
heifer."— /6ic^.  22. 

"  Do  you  think  our  Roman  Catholics,  at  least  the 
Jesuits,  were  idle  spectators  all  the  while  and  had  not 
a  hand  in  the  30th  of  January,  as  well  as  in  the  fifth 
of  November?  Is  it  not  well  known  that  the  train  to 
entangle  us  in  that  horrible  snare,  and  intrigue  of  the 
late  confusions,  was  laid  by  a  great  Cardinal  minister 

of  State,  and  perhaps  the  whole  conclave?  Is  it 

not  yet  apparent,  that  the  Popish  emissaries  and  in- 
cendiaries were  sent  hither  on  purpose  under  the  name 
of  Anabaptists,  Seekers,  and  Quakers,  and  I  know 
not  what  to  blow  the  coals  and  foment  the  flames  of 
our  late  dissensions  ? " — Duport,  Sermon  on  Fifth  of 
November,  72. 


DISCUSSED  IN  CHAPTERS  VIII  AND  IX  381 


"  Our  factious,  fanatic,  turbulent,  and  schismatical 
spirits  are  but  the  Jesuits'  journeymen." — Ibid.  76. 

3.    Clericalism  of  the  Presbyterian  System. 

"Their  [the  Presbyterians']  Church  government  is 
pernicious  to  Civil  Power,  grievous  to  such  as  must 
live  under  it,  and  apt  to  distort  the  Common  Peace." 
— Leslie,  The  Trojan  Horse  of  the  Presbyterian  Govern- 
ment Unbowelled,  3. 

"  They  claim  power  to  abrogate  the  laws  of  the  land 
touching  ecclesiastical  matters,  if  they  judge  them  hurtful 

or  unprofitable  They  require  the  civil  magistrate  to 

be  subject  to  their  power." — Ibid.  5. 

"  It  may  be  that  the  general  disaffection  to  regal 
power,  in  these  distractions,  may  render  some  men 
less  apprehensive  of  the  dangerous  consequences  of 
this  doctrine,  and  the  former  claims ;  as  supposing 
them  to  have  no  other  drift  than  to  clip  the  wings 
of  royal  prerogative.  But  this  is  a  gross  and  dangerous 
mistake  and  whosoever  shall  be  invested  with  that 
Civil  Power,  which  shall  be  taken  from  the  King,  be 
it  the  Parliament  or  whosoever  else,  must  look  to  suc- 
ceed him  in  the  heavy  enmity  which  this  Presbyterian 
power  will  exercise  against  the  Civil  Power  (when  it 
doth  not  comply  with  them),  in  what  hands  soever  it 
be  placed.  For  these  encroachments  of  theii-s  are  not 
upon  the  King  as  distinguished  from  other  magistrates, 
but  upon  the  civil  magistrate  in  common  whosoever  he 
he."—Jbid.  8. 

"  The  King  and  Parliament  must  be  subject  not  only 
to  their  general  assembly,  but  (in  subordination  to  that) 
to  the  dictates  of  every  petty  parochial  session,  where 
their  personal  residence  and  abode  shall  be.  Lastly  if 
the  King  and  Parliament  will  govern  contrary  to  their 


382         EXTRACTS  ILLUSTRATIVE  OF  POINTS 


Avill  and  pleasure,  their  principles  will  allow  them  to 
incite  the  people  to  resist  them." — Ibid.  8. 

"They  determine  that  the  temporal  magistrate  is 
bound  to  punish  adultery  witli  death  by  God's  own 

law  They  hold  it  unlawful  for  the  civil  magistrate 

to  pardon  capital  offenders." — Ibid.  9. 

"  By  their  platform  they  may  deal  with  all  civil  causes 
for  a  spiritual  end,  which  the  Pope  usually  expresses 
with  this  clause  In  ordine  ad  bonum  Spirituale,  and 
these  men  by  the  same  effect  in  ordine  ad  bonum 
ecclesiae.  But  both  he  and  they  do  by  this  distinction 
usurp  upon  the  Civil  magistrate." — Ibid.  10. 

"  This  discipline  which  they  do  so  much  adore  is 
the  very  quintessence  of  refined  Popery,  or  a  greater 
Tyranny  than  ever  Rome  brought  forth,  inconsistent 
with  all  forms  of  civil  government,  destructive  to  all 
sorts  of  policy,  a  rack  to  the  conscience,  the  heaviest 
pressure  that  can  fall  upon  a  people,  and  so  much  more 
dangerous  because  by  the  specious  pretence  of  Divine 
institution,  it  takes  away  the  right,  but  not  the  burden 
of  slavery." — Bramhall,  A  Warning  to  the  Church  of 
England,  2. 

That  it  [the  Discipline^  exempts  the  ministers  from 
due  punishment. — Ibid.  Chap.  iv. 

The  Disciplinarians  cheat  the  magistrate  of  his  civil 
power,  in  order  to  religion. — Ibid.  Chap.  vii. 

"They  ascribe  unto  their  ministers  a  liberty  and 
power  to  direct  the  magistrate  even  in  the  managery  of 
civil  affairs." — Ibid.  25. 

"  They  assume  a  power  in  worldly  affairs  indirectly 
and  in  order  to  the  advancement  of  the  Kingdom  of 
Chvi&t."— Ibid.  26. 

"The  Parliament  will  restore  to  the  King  his 
negative  voice ;  a  mere  civil  thing.    The  commissioners 


DISCUSSED  IN*  CHAPTERS  VIII  AND  IX  383 


of  the  Church  oppose  it,  because  of  the  great  dangers 
that  may  thereby  come  to  religion.  The  Parliament 
name  officers  and  commanders  for  the  army ;  a  mere  civil 
thing.  The  Church  will  not  allow  them  because  they 
want  such  qualifications,  as  God's  word  requires,  that  is 
to  say  in  plain  terms  because  they  were  not  their 
confidents.  Was  there  ever  Church  challenged  such  an 
omnipotence  as  this  ?  Nothing  in  this  world  is  so  civil 
or  political,  wherein  they  do  not  interest  themselves  in 
order  to  the  advancement  of  the  Kingdom  of  Christ." — 
Ibid.  27. 

"  This  is  the  Presbyterian  want,  to  subject  all  causes 
and  persons  to  their  consistories,  to  ratify  and  abolish 
civil  laws,  to  confirm  and  pull  down  Parliaments,  to 
levy  forces,  to  invade  other  Kingdoms,  to  do  anything 
respectively  to  the  advancement  of  the  good  cause  and 
in  order  to  religion." — Ihid.  31. 

Chapter  VIII.  That  the  Disciplinarians  challenge 
this  exorbitant  poiver  by  Divine  Might. 

Chapter  IX.  That  this  discipline  makes  a  monster 
of  the  Commonwealth. 

"  We  have  seen  how  pernicious  this  discipline  (as 
it  is  maintained  in  Scotland  and  endeavoured  to  be 
introduced  into  England  by  the  Covenant)  is  to  the 
Supreme  Magistrate,  how  it  robs  him  of  his  supremacy 
in  ecclesiastical  affairs,  and  of  the  last  appeals  of  his 
own  subjects,  that  it  exempts  the  presbyters  from  the 
power  of  the  magistrate,  and  subjects  the  magistrate  to 
the  presbyters,  that  it  restrains  his  dispensative  power 
of  pardoning,  deprives  him  of  the  dependence  of  his 
subjects,  that  it  doth  challenge  and  usurp  a  power 
paramount  both  of  the  word  and  of  the  sword,  both 
of  peace  and  war,  over  all  courts  and  estates,  over 
all   laws   civil   and   ecclesiastical,   in   order   to  the 


384  EXTRACTS  ILLUSTRATIVE  OF  POINTS 


advancement  of  the  Kingdom  of  Christ,  whereof  the 
Presbyters  alone  are  constituted  rulers  by  God,  and  all 
this  by  a  pretended  Divine  Right,  which  takes  away 
all  hope  of  remedy,  until  it  be  hissed  out  of  the  world ; 
in  a  word  that  it  is  the  top-branch  of  Popery,  a  greater 
tyranny,  than  ever  Rome  was  guilty  of.  It  remains 
to  shew  how  disadvantageous  it  is  also  to  the  subject. 

"  First,  to  the  Commonwealth  in  general  which  it 
makes  a  monster,  like  an  amphiscian  or  a  serpent  with 
two  heads,  one  at  either  end.  It  makes  a  coordination 
of  sovereignty  in  the  same  society,  two  supremes  in 
the  same  Kingdom  or  State,  the  one  civil,  the  other 
ecclesiastical,  than  which  nothing  can  be  more  pernicious 
either  to  the  consciences,  or  the  estates  of  subjects,  when 
it  falls  out  (as  it  often  doth)  that  from  these  two  heads 
issue  contrary  commands."- — Ihid.  35. 

The  striking  similarity  of  this  passage  to  the  argument 
of  Ockham  against  the  Papacy  is  plain. 

Chapter  X.  That  this  discipline  is  most  prejudicial 
to  the  Parliament. 

Chapter  XI.  That  this  discipline  is  oppressive  to 
particular  persons. 

Nalson,  Common  Interest  of  King  and  People,  Chap.  ix. 

Presbytery  in  reality  as  great  an  enemy  to  Democracy 
and  Parliaments  as  to  monarchy.  A  short  view  of  their 
tyrannic  consistorian  government  over  the  magistracy, 
clergy  and  laity.    Of  the  latitude  and  power  of  scandal 

to  draw  all  affairs  into  the  consistory  The  small 

difference  betwixt  a  Jesuit  and  Geneva  Presbyter.  Both 
aim  at  supremacy. 

"We  shall  find  that  it  is  absolutely  inconsistent 
with  all  government  (except  its  own  oligarchic  spiritual 
tyranny)  and  even  that  adored  Democracy,  which  it 
pretends  to  hug  and  embrace  with  so  much  tenderness 


DISCUSSED  IN  CHAPTERS  VIII  AND  IX  385 


and  affection  The  real  design  is  to  dash  a  Parliament 

against  a  King,  to  break  them  both  in  pieces  ;  and  like 
the  ape  in  the  story  to  make  a  cat's  foot  of  the  House  of 
Commons,  to  pull  the  nut  out  of  the  hot  ashes  of  rebellion, 
into  which  they  shall  have  reduced  the  monarchy  ;  for 
when  once  by  that  assistance  they  shall  have  procured 
their  own  establishment,  they  will  render  it  as  absolute 
a  slave,  as  they  would  do  monarchy." — Ibid.  241. 

"  It  is  not  the  persons  or  names,  but  the  superiority 
of  the  authority,  against  which  this  faction  of  Geneva 
levels  all  its  aims." — Ibid. 

"  These  saints  who  pretend  to  a  power  of  binding 
Kings  in  chains  will  without  scruple  so  claim  the  honour 
of  shackling  the  nobles  in  fetters  of  iron." — Ibid.  242. 

"  It  is  the  desire  of  sovereignty  under  the  colour  of 
religion  at  which  they  aim ;  and  to  which  whatsoever  is 
an  obstacle,  whether  King,  Parliament,  Prelates,  Lords, 
or  Commons,  shall  all  be  declared  anti-Christian  and 
unlawful  powers." — Ibid.  244. 

"  The  great  assembly  and  the  moderator  for  the 
time  being  is  the  absolute  and  supreme  sovereign  power 
of  the  nation,  where  Presbytery  bears  the  sway." — 
Ibid.  247. 

"  They  [Presbytery  and  Jesuitry]  are  both  inconsistent 
with  monarchy  and  indeed  with  all  government ;  over 
which  they  pretend  a  power  and  jurisdiction  by  Christ, 
the  one  for  the  Pope,  the  other  for  the  Presbytery ;  from 
which  there  lies  no  appeal." — Ibid.  257. 

Chapter  X.  Presbytery  as  destructive  of  the  People's 
liberty  and  property  as  it  is  da/ngerous  to  monarchy  and 
all  government. 

"  No  person  whatsoever,  let  him  pretend  never  so 
much  religion,  sanctity,  or  innocence,  can  possibly  be  a 
good  subject,  so  long  as  he  continues  a  true  Presbyterian 
F.  25 


386         EXTRACTS  ILLUSTRATIVE  OF  POINTS 


or  of  their  oflFspring  ;  in  regard  they  always  carry  about 
with  them  as  the  main  of  their  religion  such  principles, 
as  are  directly  contrary  to  monarchy  and  destructive 
of  loyalty ;  to  which  he  can  never  be  a  firm,  true  and 
assured  friend,  who  owns  a  power  superior  to  that  of 
his  prince  within  his  dominions ;  and  that  such  a  power 
may  of  right  depose  him,  and  take  away  his  crown  and 
life,  which  has  been  proved  to  be  the  avowed  doctrine 
of  the  consistorians  of  Geneva,  Scotland,  and  England, 
both  in  point  and  practice." — 270. 

"  That  Presbyterian  popular  consistorian  supremacy, 
is,  and  ever  will  be,  the  unchangeable,  irreconcilable 
enemy  of  monarchy,  law,  liberty,  peace,  property,  and 
the  true  Protestant  Catholic  religion." — 279. 

"  Having  thus  taken  the  whole  civil  government 
into  their  own  hands  as  the  Pope  has  done,  and  by 
virtue  of  the  same  distinction  in  ordine  ad  spiritualia 
they  followed  him  likewise  in  that  which  is  a  natural 
consequence  of  the  other,  to  exempt  themselves  from 
being  accountable  to  the  civil  power  even  for  civil 
crimes." — Leslie,  The  New  Association,  Part  ii.  33. 

4.  The  Divine  Right  of  Kings  in  reality  a  defence 
of  all  secular  governments  against  ecclesiastical  aggres- 
sion. 

"It  shall  suffice  to  note  that  the  Romanist  makes 
an  unequal  comparison  and  sets  the  terms  of  his 
proposition  awry,  when  he  compares  spiritual  power 
indefinitely  taken  with  power  royal  or  monarchical, 
which  is  but  a  branch  though  the  highest  branch  of 
power  civil  or  temporal.  The  question  should  be 
betwixt  authority  spiritual  or  ecclesiastic  indefinitely 
taken ;  and  between  power  civil  or  temporal  alike 
indefinitely  taken.    Power  temporal  or  civil  thus  taken 


DISCUSSED  IN  CHAPTERS  VIII  AND  IX  387 


is  immediately  from  God,  and  government  temporal 
itself  in  some  one  kind  or  other  (that  is  Monarchical, 
Aristocratical  or  mixed  or  &c.)  is  de  Jure  Divino,  as 
well  as  power  spiritual  or  ecclesiastic  is." — Jackson, 
Treatise  of  Christian  Obedience  (  Works,  iii.  903). 

"  That  this  nation  should  be  governed  by  a  King, 
another  by  peers  and  nobles,  another  by  the  people,  or 
by  magistrates  of  the  people's  choosing,  either  annual 
or  for  term  of  life,  this  is  not  determined  Jure  Divino 
by  any  express  or  positive  law  of  God,  but  is  reserved 
unto  the  guidance  of  his  ordinary  Providence,  who 
sometimes  directs  one  people  or  nation  to  make  choice 
of  this  form,  another  to  make  choice  of  that.  But  the 
choice  of  government  being  made  by  the  people  or 
imposed  upon  them  by  right  of  war,  to  yield  obedience 
to  the  form  of  government  or  power  established,  this  is 
de  Jure  Divino  positively  and  peremptorily  determined 
and  enjoined  by  the  law  of  God.  And  whosoever 
doth  resist  the  form  of  government  established  in  the 
commonweal,  whereof  he  is  a  member,  be  it  of  this 
form  or  that,  he  doth  resist  the  higher  powers ;  and 
by  resisting  them  resisteth  the  ordina/nce  of  God." — 
Ibid.  963. 

5.  Inevitable  conjlict  between  temporal  and  spirit- 
ual powers,  so  long  as  the  principle  of  toleration  is 
unrecognized. 

"  It  is  indeed  impossible  that  a  coordination  of  these 
powers  should  subsist ;  for  each  will  be  continually 
encroaching  on  the  other,  each  for  its  own  defence  and 
support  will  continually  be  struggling  and  clambering 
to  get  above  the  other ;  there  never  will  be  any  quiet 
till  one  come  to  subside  and  truckle  under  the  other ; 
whereby  the  sovereignty  of  the  one  or  the  other  will  be 

25—2 


388         EXTRACTS  ILLUSTRATIVE  OF  POINTS 


destroyed ;  each  of  them  soon  will  come  to  claim  a 
supremacy  in  all  causes  and  the  power  of  both  swords ; 

and  one  side  will  carry  it  " — Barrow,  Treatise  of  the 

Pope's  Supremacy,  144. 

The  divergence  of  this  view  from  that  of  Barclay, 
the  representative  of  strict  Gallicanism,  is  noteworthy. 
Barclay  strongly  emphasizes,  that  need  of  two  coordinate 
authorities,  which  Barrow  denies  to  be  possible.  "  A 
free  Church  in  a  free  State "  was  the  ideal  of  the 
Gallican  writer ;  the  Anglican  is  aware,  that  the  dream 
is  incapable  of  realization. 

6.  Connection  of  English  politics  with  French  con- 
troversies. 

"  This  pretence  of  the  King's  authority  against  his 
person  was  hatched  under  the  Romish  territories  and 
made  use  of  in  the  Holy  League  of  France." — Falkner, 
Christia7i  Loyalty,  356. 

7.  The  theory  of  Hohhes  regarded  as  dangerous, 
notmthsta7iding  his  practical  conclusions,  owing  to  his 
basing  it  upon  the  original  compact. 

"Though  Mr  Hobbs  sometimes  hath  over-large 
expressions  concerning  the  power  of  governors ;  yet 
he  having  before  laid  the  same  formation  for  the 
original  of  political  government,  doth  also  undermine  the 

safety  and  stability  of  governors  and  government  

But  as  these  positions  are  framed  upon  such  suppositions, 
as  look  upon  man  in  his  beginning,  to  stand  without 
due  respect  to  God,  and  the  rules  and  notions  of  good 
and  evil ;  so  the  dangerous  aspect  they  have  on  peace 
and  government  doth  speak  the  folly  of  them,  and 
they  will  be  sufficiently  in  this  particular  confuted  by 


DISCUSSED  IN  CHAPTERS  VIII  AND  IX  389 


asserting  the  divine  original  of  sovereignty." — Falkner, 
Christian  Loyalty,  409. 

"I  consent  with  him  about  the  rights  of  exercising 
government,  but  I  cannot  agree  to  his  means  of  ac- 
quiring it.  It  may  seem  strange  I  should  praise  his 
building,  and  yet  niislike  his  foundation,  but  so  it  is, 
his  Jus  naturae  and  his  regnum  institutivu7n  will  not 
down  with  me ;  they  appear  full  of  contradiction 
and  impossibilities." — Filmer,  Observations  touching  the 
original  of  government,  Preface. 

8.  The  patriarchal  theory  of  kingship  based  on  a 
belief  in  the  state  of  nature  and  in  Scripture  as  the  only 
authentic  testimony  for  it.  Natural  rights  are  Divine 
rights. 

The  original  state  of  nature  shewed  to  be  a  state 
of  government  and  subjection  not  of  independency. — 
Leslie,  The  Rehearsal,  No.  55. 

"The  first  state  of  nature  to  which  all  our  whigs  do 
refer,  makes  clearly  against  them,  and  is  wholly  on 
your  side,  who  plead  for  government  and  the  divine 
institution  of  it ;  against  that  original  independent 
state  of  nature,  which  the  whigs  do  suppose,  but  can 
never  prove,  unless  they  can  find  some  other  original 
of  mankind  than  the  holy  Scriptures  have  told  us." — 
Ibid.  No.  56. 

"If  being  born  under  Laws  and  a  government  whose 
legislative  has  an  absolute  despotic  and  unaccountable 
power  over  our  very  lives  as  well  as  our  estates  without 
staying  to  ask  our  consent,  if  this  is  to  be  free  born, 
then  all  the  world  are  so  and  ever  have  been  so  since 
Adam  :  otherwise  not  one,  unless  a  King  be  born  after 
his  father  is  dead." — Leslie,  The  New  Association, 
Part  I.  15. 


390         EXTRACTS  ILLUSTRATIVE  OF  POINTS 


" '  Supposing  therefore  that  Adam  was  universal 
monarch  or  civil  governor  over  the  whole  race  of 
mankind,  during  his  long  life  this  will  not  prove  he 
had  a  Divine  right  to  be  so?'  Will  it  not?  Then  I 
am  very  sure  no  after-King  can  claim  it.  If  Adam  had 
no  Divine  Right,  what  right  had  he?" — Leslie,  The 
Finishing  Stroke,  18. 

"  I  go  upon  fact  plainly  recorded  in  Scripture." — 
IHd.  38. 

"The  Rehearsal  had  blamed  those  who  went  to 
heathen  authors  for  the  original  of  government,  because 
none  of  their  histories  reached  so  high,  and  they  knew 

not  how  the  world  or  mankind  begun  The  only  and 

the  certain  account  of  it,  is  to  be  found  in  the  Holy 

Scriptures." — Ibid.  89. 

"The  Rehearsal  places  the  original  of  government  in 
the  positive  institution  of  God,  though  at  the  same  time 
he  shews  it  to  be  consequential,  and  most  agreeable  to 
the  frame  of  our  nature,  as  being  all  deduced  from 
one  common  father.  Which  patriarchal  or  fatherly 
authority  is  not  only  founded  in  Nature,  but  most 
expressly  and  originally  in  the  first  institution  of 
government  placed  by  God  in  Adam." — Leslie,  A  Battle 
Royal,  128. 

"A  family  is  a  little  kingdom,  but  a  kingdom  is 
nothing  but  a  great  family.  Therefore  such  a  state  of 
mankind,  where  all  are  upon  the  level  and  the  consent 
of  every  individual  made  necessary  to  the  erection  of 
government,  as  Locke  and  others  suppose  it,  because 
that  every  man  is  freeborn  and  that  no  man's  life  and 
liberty  or  property  can  be  disposed  of  but  by  his  own 
consent,  I  say  such  a  state  cannot  be  called  the  state 
of  nature  because  nature  implies  fathers  and  mothers ; 
it  may  be  called  a  state  of  mankind,  but  not  of  such 


DISCUSSED  IN  CHAPTERS  Vdl  AND  IX  391 


men  as  we  are,  but  of  a  shower  of  men  rained  down 
from  the  clouds  or  new  created  in  multitudes,  like  the 
beasts,  fish,  and  fowl  at  the  beginning  and  no  one 
dependent  upon  the  other.  So  that  even  the  Hottentot 
cannot  represent  this  state,  which  yet  is  necessary  to 
make  the  people  the  original  of  government." — Ibid. 
128. 

"But  to  them  that  believe  the  truth  revealed  in 
Holy  Scripture,  'tis  strange  they  should  make  question 
about  it,  seeing  the  world  began  in  one  man,  that  lived 
nigh  one  thousand  years,  at  puberty  the  first  hour ;  so 
that  he  could  not  have  a  less  monarchy  than  any  now 
extant  in  the  world  considering  the  vast  increase  there 
may  be  from  man  and  woman  in  a  perfect  state  of 
health  examined  by  the  surest  rules  of  progression. 
Against  him  should  anyone  in  the  world  rise  up,  it  had 
been  i-ebellion  and  parricide.  Nothing  but  the  authority 
of  God  would  justify  the  suspension  of  obedience  to  him 
the  natural  father  of  the  world." — Leslie,  Obedience  to 
Civil  Government  clearly  stated,  11:. 

The  divergence  between  Leslie  and  the  French 
School  is  shewn  in  the  different  views  taken  of  Nimrod. 
To  the  French  school  he  is  the  founder  of  monarchy,  to 
Leslie  he  is  the  first  instance  of  a  successful  usurper. 

"  If  it  [Self  preservation]  were  a  natural  law,  it  would 

be  a  sin  to  resign  it  over  to  any  Self  Preservation  is 

only  an  instinct." — Ibid.  72. 

9.  Gidf  between  Adamic  society  and  modern  times 
bridged  by  theory  a/  prescriptive  right. 

"Possession  gives  right,  tho'  wrongfully  come  by,  

[if]  there  is  none  who  claims  a  better  I'ight  than  the 
possessor." — Leslie,  The  Sham  Sermon  Dissected,  2. 

10.  Question  of  source  of  Latv.     There  must  be  a 


392        EXTRACTS  ILLUSTRATIVE  OF  POINTS 


supreme  lawgiver:  A  sovereign  needful  to  invest  laws 
with  binding  authority. 

"Laws  must  be  made  by  Kings.  Therefore  Kings 
must  be  before  Laws." — Leslie,  Cassandra,  22. 

"  Kings  were  kings  before  there  were  Laws  The 

King's  Power  is  antecedent  to  Law  which  hath  its  force 
from  him." — The  Apostate  Protestant,  4L 

"  He  gives  the  prince  no  right  but  what  is  vested  in 
him  by  law.  Tho'  his  right  is  prior  to  the  law,  for  he 
gives  sanction  to  the  law,  and  who  gave  him  the  right 
to  do  that?  And  here  we  are  enjoined  to  give  the 
prince  no  more  than  what  is  vested  in  him  by  law. 
Then  he  can  no  more  give  sanction  to  any  law ;  unless 
we  can  find  a  law  before  there  was  any  King,  to  make 
that  King,  and  give  him  a  right  to  give  sanction  to  laws 
for  the  future." — Leslie,  The  S/tam  Sermon  Dissected,  5. 

"This  manifests  the  fundamental  error  in  politics, 
of  those  persons  who  make  laws  to  have  a  priority,  before 
Kings  and  governors ;  as  if  the  laws  made  Kings  and 
magistrates,  when  in  truth  God  and  nature  vested  primo- 
geniture with  the  right  of  Kings  and  magistrates  ;  and 
they  made  the  first  laws." — Nalson,  Common  Interest  of 
King  and  People,  13. 

"  There  can  be  no  laws,  till  there  be  some  frame  of 
government,  to  establish  and  enact  such  laws ;  nor  can 
anything  have  the  force  or  power  of  a  law,  or  oblige 
men  to  obedience,  unless  it  does  proceed  from  a  person 
or  persons,  as  have  a  right  to  command  it,  and  authority 
to  punish  the  disobedience  or  neglect  of  those  who  ought 
to  be  subject  to  it." — Ibid.  14. 

"[The  common  law]  follows  in  time  after  government, 
but  cannot  go  before  it,  and  be  the  rule  to  government 
by  any  original  or  radical  constitution." — T^Wxa&c,  Anarchy 
of  a  Limited  and  Mixed  Monarchy,  267. 


DISCUSSED  IK  CHAPTERS  VIII  AND  IX  393 


11.  There  must  be  in  every  state  a  novereiyn,  not 
hound  by  positive  law. 

"  There  must  be  a  dernier  ressort  or  there  can  be 
no  government.  And  where  there  is  in  an  assembly 
that  assembly  is  one  body,  as  one  person." — Leslie, 
Cassandra,  23. 

Hoadly.  We  are  free  because  the  government 
cannot  hang  us  on  what  they  please  but  they  are 
bounded  by  law,  and  we  must  have  a  fair  trial,  and  by 
our  peers  too. 

Hottentot.  So  you  are  free,  because  you  are  hanged 
by  a  jury !  But  what  think  you  of  an  Act  of  Attainder, 
whicli  can  hang  without  any  trial  or  giving  you  any 
reason  for  it^ 

Hoad.  This  is  part  of  our  constitution,  that  the 
Parliament  should  have  such  a  power  in  extraordinary 
case. 

Hott.  Yet  you  are  free  !  And  these  cases  happen, 
as  oft  as  the  Parliament  pleases.  They  are  not  tied  to 
any  rule,  but  may  make  use  of  this  power,  whenever  it 
comes  into  their  heads. 

Hoad.  Well,  but  the  King  cannot  hang  us  at  his 
ple^asure. 

Hott.  That  is,  you  are  not  at  the  mercy  of  one  man, 
but  of  five  hundred.  O  delicate  freedom." — Leslie, 
.1  Battle  Royal,  142. 

"After  laws  and  society  come  in,  all  under  it  are 
born  slaves,  that  is  under  the  absolute  dominion  of  what 
you  call  the  legislature  in  every  society.  And  whether 
that  be  in  the  hands  of  one  or  more  it  is  all  the  same 
as  to  the  destruction  of  liberty.  For  what  is  it  to  me, 
whether  I  am  hanged  by  the  command  of  one  or  of  five 
hundred?"— /6iU  159. 

"  Every  government  has  absolute  power  over  the 


394 


EXTRACTS  ILLUSTRATIVE  OF  POINTS 


lives,  as  well  as  estates  of  all  their  subjects  without 
asking  their  leave  or  making  any  contract  with  them. 
They  are  born  in  subjection,  without  conditions." — Leslie, 
The  Best  Aiisioer  that  ever  was  made,  8. 

"Without  a  last  resort  there  can  be  no  government. 
And  if  this  be  in  the  people,  still  there  is  no  government. 
And  if  you  stop  short  of  all  the  people,  then  wherever  it 
rests,  there  is  'absolute  unaccountable'  &c." — Ibid.  15. 

"These  men  have  strange  notions  of  monarchy,  and 
of  absolute  government,  which,  as  I  have  often  said,  is 
the  same  in  all  sorts  of  governments  whatsoever.  All 
the  difference  is  in  whom  this  absolute  power  shall  be 
placed,  whether  in  one,  in  a  few,  or  in  many?" — 
Leslie,  The  Rehearsal,  No.  59. 

"All  governments  in  the  world  must  be  arbitrary,  in 
some  hands  or  other ;  for  there  must  be  a  last  resort 
in  every  government,  and  that  must  be  arbitrary  and 
unaccountable,  as  having  no  superior  upon  earth." — 
Ibid.  No.  36. 

"If  any  man  can  find  us  out  such  a  kind  of  govern- 
ment, wherein  the  supreme  power  can  be,  without  being 
freed  from  human  laws,  they  should  first  teach  us 

that  a  legislative  power  cannot  be  without  being 

absolved  from  human  laws." — Filmer,  Observations  wpon 
Mr  Milton  against  Salmasius. 

"A  necessity  to  grant  impuniti/  to  some  in  all 
governments  to  avoid  confusion." — Dudley  Digges,  Un- 
lawfulness of  Subjects,  43. 

"If,  as  Mr  Locke  says,  and  says  he  has  proved  it, 
iVb  man  can  subject  himself  to  the  arbitrary  power  of 
anotlier,  no  man  can  subject  himself  to  any  government 
of  what  sort  or  size  soever.  Nor  can  there  be  such 
a  thing  as  government  kept  up  in  the  world." — Leslie, 
The  Rehearsal,  No.  38. 


DISCUSSED  IN  CHAPTERS  VIII  AND  IX  395 


"In  all  kingdoms  or  commonwealths  in  the  world, 
whether  the  prince  be  the  supreme  father  of  the  people 
or  but  the  true  heir  of  such  a  father,  or  whether  he 
come  to  the  crown  by  usurpation,  or  by  election  of  the 
nobles  or  of  the  people,  or  by  any  other  way  whatso- 
ever ;  or  whether  some  few  or  a  multitude  govern  the 
Commonwealth;  yet  still  the  authority  that  is  in  any  one 
or  in  many  or  in  all  these  is  the  only  right  and  natural 
authority  of  a  supreme  father." — Filnier,  Patriarcha,  i. 
§10. 

"  The  true  debate  amongst  men  is  not  whether 

they  shall  admit  of  bonds  but  who  shall  impose 

them ;  the  question  is  not  an  servirent,  sed  an  uni  vel 
plurihus ;  it  is  commonly  called  liberty,  to  serve  more 
masters." — Dudley  Digges,  Unlawfulness  of  Subjects 
taking  up  Arms,  29. 

12.  Sovereignty  indivisible.  Anarchy  of  a  mixed 
monarchy. 

"They  know  very  well  that  there  can  be  no  sharing 
of  power,  it  must  be  one  and  entire  ;  and  the  contest 
for  it  is  anarchy  and  confusion." — Leslie,  The  New 
Association,  Part  ii.  11. 

"All  power  is  one  indivisible  whether  in  the  hands 
of  one  or  many." — Leslie,  Cassandra,  23. 

"He  lays  his  stress  upon  a  constitution  like  ours. 
And  as  he  has  dressed  our  constitution,  we  may  well  say 
there  is  not  a  constitution  like  ours  upon  the  face  of  the 
earth.  He  has  made  it  up  of  coordinate  powers,  all 
opposition,  nonsense,  and  contradiction." — Leslie,  The 
Sham  Sermon  Dissected,  5. 

"It  doth  not  follow,  that  the  form  of  government  is, 
or  can  be  in  its  own  nature  ill,  because  the  governor 
is  so ;  it  is  anarchy,  or  want  of  government  that  can 


396        EXTRACTS  ILLUSTRATIVE  OF  POINTS 


totally  destroy  a  nation." — Filmer,  Observations  upon 
Mr  Milto7i  ((.gainst  Salmasius,  494. 

"This  mixed  monarcliy,  just  like  the  limited,  ends  in 
confusion  and  destruction  of  all  government." — Filmer, 
Anarchy  of  a  Mixed  and  Limited  Monarchy,  272. 

"There  cannot  be  such  a  thing  as  mioctrim  imperiuin 

 because  if   there  are  divers  supreme  powers  it 

is  no  longer  one  state.    If  the  supreme  power  be  but 

one,  this  must  be  placed  either  in  one  man,  

or   in    some    nobles  or   if    the   civil  constitution 

of  a  state  directs  us  to  appeal  to  the  people,  this 
is  an  absolute  and  true  democracy." — Dudley  Digges, 
Unlawfulness,  77. 

"I  have  shewn  before  that  a  mixed  monarchy  is  a 
contradiction." — Ibid.  168. 

13.  Theory  of  Divine  Right  a  defence  of  govern- 
ment against  anarchy,  fa/r  more  than  an  apology  for 
monarchy. 

"The  endeavouring  to  settle  sure  and  lasting  founda- 
tions of  government  in  opposition  to  these  popular  no 
principles,  of  sedition  and  eternal  confusion,  is  all  the 
reason  I  know  that  has  stirred  up  the  wrath  of  these 
orators  of  the  populace." — Leslie,  Cassandra,  I.  41. 

"[Government]  in  the  largest  sense  is  a  communion 
of  superiors  and  inferiors  united  for  the  safety  of  the 
whole ;  to  disunite  them  is  overturning  it." — Leslie, 
Obedience  to  Civil  Government  clearly  stated,  8. 

"  The  reasons  against  Kings  are  as  strong  against 
all  powers,  for  men  of  any  titles  are  subject  to  err,  and 
numbers  more  than  fewer." — Ibid.  63. 

"This  doctrine  may  disturb  the  present,  and  threaten 
all  future  governors  and  governments  whatsoever." — 
Ibid.  64. 


DISCUSSED  IN  CHAPTERS  VIII  AND  IX  397 


"All  the  arguments  used  to  justify  self  preservation, 
are  grounded  only  on  supposition  that  men  may  be 
wronged  or  oppressed  by  God's  magistrates  or  rulers  ; 
and  therefore  conclude  as  well  against  all  civil  govern- 
ment, as  against  the  magistrate  in  being." — Ibid.  90. 

"If  the  last  resort  be  in  the  people,  there  is  no  end 
of  controversy  at  all,  but  endless  and  unremediable 
confusion." — Leslie,  The  Best  Answer,  14. 

"  It  is  unlawful  to  resist  him  or  them  in  whom  the 
supreme  authority  (that  is  all  the  legal  power  of  the 

kingdom)  is  placed,  and  no  dispensation  can  excuse 

such  resistance  from  the  sin  of  rebellion.  Upon  this 
pillar  not  only  monarchy  stands  firm,  but  all  other 
governments  are  equally  supported." — Dudley  Digges, 
Unlawfulness  of  Subjects,  10. 

"Liberty  to  resist  those  in  whom  the  law  places  jus 
gladii,  the  right  of  the  sword,  destructive  to  the  very  nature 
of  government." — Ibid.  8. 

"This  argument  [of  equality]  doth  not  conclude  for 
one  form  above  another  but  equally  destroys  all." — 
Ibid.  29. 

"Hoadly.  He  is  ever  representing  nie  as  maintaining 
such  principles  as  are  inconsistent  with  the  safety  of  all 
government." — Leslie,  Best  of  All,  8. 

"Obedience  is  due  to  commonwealths  by  their 
subjects,  even  for  conscience'  sake,  where  the  princes 
from  whom  they  have  revolted  have  given  up  their 
claim:'— Ibid.  27. 

"The  power  of  the  people  which  you  set  up  is 
equally  destructive  of  commonwealths  as  of  monarchies. 

 And  with  that  it  is  impossible  for  any  government 

to  subsist."— /StW.  30. 

"  I  was  the  more  willing  to  make  this  observation, 
that  when  1  speak  of  sovereign  princes  I  may  not  be 


398         EXTRACTS  ILLUSTRATIVE  OF  POINTS 


maliciously  traduced  as  if  I  spoke  of  them  exclusively 
and  not  of  other  sovereigns,  as  if  monarchy  were  of  sole 
Divine  right.  For  want  of  this  distinction  other  writers 
have  had  this  invidious  imputation  laid  upon  them;  but 
this  reason  of  not  resisting  the  sovereign,  because  he  is 
God's  vicegerent  and  only  subject  to  Him,  is  a  common 
reason  of  passive  obedience  to  all  sovereigns,  as  well  as 
unto  Kings,  and  unto  Kings,  as  well  as  unto  any  other 
sovereigns." — Hickes,  Jovian,  240. 

14.    Necessity  of  Divine  institution  for  government. 

"Now  I  say  that  none  has  or  can  have  any  power 
or  authority,  but  what  is  given  him  by  some  other, 
except  God  alone,  who  is  the  sole  fountain  of  all  power 
and  authority  on  earth  as  well  as  in  heaven.  And 
therefore  that  God  not  having  given  man  power  over 
his  own  life,  nor  in  his  natural  state  over  the  life  of  any 
other  man ;  consequently  the  power  of  life  and  death 
(which  is  necessai'y  in  all  government)  could  never  have 
come  from  the  gift  or  grant  of  the  people  in  their 
natural  state.  But  that  the  positive  institution  of  God 
is  necessary  to  found  government,  and  invest  magistrates 
with  the  power  of  life  and  death.  And  that  without 
this,  no  obligation  of  conscience  can  be  laid  upon  any 
man  to  submit  to  any  government  whatsoever." — Leslie, 
The  Best  Answer,  9. 

"I  have  you  consider  that  there  is  no  authority 
but  what  is  derived  from  God.  It  would  be  to  set 
up  another  God  to  suppose  any  other  or  independent 
authority."— 18. 

"What  man  is  he  who  can  by  his  own  natural 
authority  bind  the  conscience  of  another  1  That  would 
be  far  more  than  the  power  of  life,  liberty,  or  property. 


DISCUSSED  IN  CHAPTERS  VIll  AND  IX  399 


Therefore  they  saw  the  necessity  of  a  divine  original  of 
government." — Leslie,  The  Rehearsal,  No.  37. 

"R.  Whatever  founds  government  must  be  superior 
to  it,  and  above  it.  Government  must  derive  its  original 
and  whole  authority  from  it,  and  must  be  accountable 
to  it,  and  dissolvable  by  it,  at  its  pleasure  whenever  it 
thinks  fit. 

"Now  human  cannot  be  superior  to  human,  therefore 
government  among  men  cannot  be  derived  from  mere 
human  authority.  This  is  so  very  obvious  that  all 
governments  whatever  and  of  whatever  sort,  and 
among  all   nations   and   religions,  do   pretend   to  a 

divine  right  On  all  hands  it  is  confessed  that  no 

government  can  stand  without  a  divine  original  right, 
and  authority ;  for  what  else  can  give  one  man  power 
over  another,  over  his  life,  liberty,  and  property  1 " — 
Ibid.  No.  53. 

15.    The  views  of  Hohhes  on  Passive  Obedience. 

"Having  thus  shewn  what  is  necessary  to  salvation, 
it  is  not  hard  to  reconcile  our  obedience  to  God,  with  our 
obedience  to  the  civil  sovereign;  who  is  either  Christian 
or  infidel.  If  he  be  a  Christian,  he  alloweth  the  belief 
of  this  article,  that  Jesus  is  the  Christ ;  and  of  all 
the  articles  that  are  contained  in  or  are  by  evident 
consequence  deduced  from  it ;  which  is  all  the  faith 
necessary  to  salvation.  And  because  he  is  a  sovereign, 
he  requireth  obedience  to  all  his  own,  that  is  to  all  the 
civil,  laws ;  in  which  also  are  contained  all  the  laws  of 
nature,  that  is  all  the  laws  of  God ;  for  besides  the  laws 
of  nature  and  the  laws  of  the  Church,  which  are  part 
of  the  civil  law  (for  the  Church  that  can  make  laws  is 
the  Commonwealth),  there  can  be  no  other  laws  Divine. 
Whosoever  therefore  obeyeth  his  Christian  sovereign,  is 


400         EXTRACTS  ILLUSTRATIVE  OF  POINTS 


not  thereby  hindered,  neither  from  believing  nor  from 
obeying  God.  But  suppose  that  a  Christian  King 
should  from  this  foundation  Jesus  is  the  Christ  draw 
some  false  consequences,  that  is  to  say  make  some 
superstructions  of  hay,  or  stubble,  and  command  the 
teaching  of  the  same ;  yet  seeing  S.  Paul  says,  he  shall 
be  saved  ;  much  more  siiall  he  be  saved,  that  teacheth 
them  by  his  command  and  much  more  yet,  he  that 
teaches  not,  but  only  believes  his  lawful  teacher. 
And  in  case  a  subject  be  forbidden  by  the  civil 
sovereign  to  profess  some  of  those  his  opinions,  upon 
what  just  ground  can  he  disobey*!  Christian  Kings 
may  err  in  deducing  a  consequence,  but  who  shall 
judge?  Shall  a  private  man  judge,  when  the  question 
is  of  his  own  obedience  ?  Or  shall  any  man  judge,  but 
he  that  is  appointed  thereto  by  the  Church,  that  is  by 
the  civil  sovereign  that  representeth  it?  Or  if  the  Pope 
or  an  Apostle  judge,  may  he  not  err  in  deducing  of  a 
consequence?  Did  not  one  of  the  two,  S.  Peter  or 
S.  Paul,  err  in  superstructure,  when  S.  Paul  withstood 
S.  Peter  to  his  face  ?  There  can  therefore  be  no  con- 
tradiction between  the  laws  of  God,  and  the  laws  of  a 
Christian  commonwealth. 

"And  when  the  civil  sovereign  is  an  infidel,  every 
one  of  his  own  subjects  that  resisteth  him  sinneth 
against  the  laws  of  God  (for  such  are  the  laws  of 
nature),  and  rejecteth  the  counsel  of  the  Apostles,  that 
admonisheth  all  Christians  to  obey  their  princes,  and 
all  children  and  servants  to  obey  their  parents,  and 
masters,  in  all  things.  And  for  their  faith  it  is  internal, 
and  invisible ;  they  have  the  licence  that  Naaman  had, 
and  need  not  put  themselves  into  danger  for  it.  But  if 
they  do,  they  ought  to  expect  their  reward  in  heaven, 
and  not  complain  of  their  lawful  sovereign,  much  less 


DISCUSSED  IN  CHAPTERS  VIII  AND  IX  401 


make  war  upon  him.  For  he  that  is  not  glad  of  any 
just  occasion  of  martyrdom,  has  not  the  faith  he 
professeth,  but  pretends  it  only  to  set  some  colour  upon 
his  own  contumacy." — Leviathan,  iii.  43. 

"Whatsoever  a  subject,  as  Naaman  was,  is  compelled 
to  do  in  obedience  to  his  sovereign,  and  doth  it  not  in 
order  to  his  own  mind,  but  in  order  to  the  laws  of  his 
country,  that  action  is  not  his  but  his  sovereign's,  nor  is 
it  he  that  in  this  case  denieth  Christ  before  men,  but 
his  governor  and  the  law  of  his  country." — Ibid.  42. 

16.  The  views  of  Dudley  Digges  on  the  Patriarchal 
Theory. 

"Though  it  be  most  true  that  paternal  authority  was 
regal,  and  therefore  this  of  God's  immediate  constitution, 
and  founded  in  nature,  yet  it  is  not  much  pertinent 
to  the  present  decision,  nor  can  it  necessarily  concern 
modern  controversies  between  Rulers  and  people.  Be- 
cause it  is  most  evident,  no  king  at  this  day,  (and  much 
less  other  governors)  holds  his  crown  by  that  title,  since 
several  paternal  powers  in  every  State  are  given  up,  and 
united  in  one  common  father  who  cannot  pretend  a  more 
immediate  kindred  to  Adam,  than  all  the  rest  of  man- 
kind."— The  Unlawfulness  of  Subjects,  16. 


T. 


26 


INDEX 


Anabaptists,  286 

Anglican  Church  supports  doc- 
trine of  Divine  Eight  of  Kings, 
206 ;  defended  against  charge 
of  servility,  205;  conduct  of, 
at  the  Kevoiutiou,  211 ;  se- 
cured recognition  of  great 
principles,  213 

Arthur  of  Brittany  (the  "case 
of  the  king"),  24,  80 

Baldus,  343,  345,  346,  368 
Bartolus,  his  life,  346-7,  352-3; 
his  intellectual  character- 
istics, 348-55  ;  practical 
nature  of  his  thought,  366; 
his  conception  of  Law,  349 
sqq. ;  how  far  an  Imperialist, 
355  sqq. ;  his  views  on  the 
Papacy,  357-9;  his  views  on 
the  relation  of  the  Empire  to 
other  states,  359-60 ;  his 
views  on  Tyranny,  363-6; 
his  treatise  De  Begimine 
Civitatis,  361 ;  his  doctrine 
of  the  relativity  of  political 
theories,  362  sqq.;  his  in- 
fluence on  later  thought,  346, 
348,  359,  360-1,  370-2;  his 
Processus  Satanae,  366-8, 
370;  relations  with  Baldus, 
343,  345,  346,  368-70 


Benedict  XIII.  (Pope),  111 
Bodin  (Jean),  views  of,  126 ; 

influence  on  England,  129 
Boniface  VIII.  (Pope),  41, 49,110 
Bracton,  rights  ascribed  by,  to 
the  king,  31,  34;  misunder- 
stood in  seventeenth  century, 
39  sqq. 

Charles  I.  (of  England),  204, 364 

Charles  VI.  (of  France),  111 

Charles  the  Great,  281 

Childeric,  deposition  of,  its  im- 
portance in  French  theories, 
107,  120;  in  Papal  theories, 
281 

Church  and  State,  theory  of 
Divine  Eight  a  phase  of  the 
conflict  between,  44  sqq., 
219 ;  inevitable  conflict  be- 
tween, 216,  340,  387;  a 
single  society  or  two  societies, 
274,  275,  285  sqq.,  359 

Church  cannot  allow  uncondi- 
tional freedom  to  the  State, 
214,  287 

Civil  Law,  influence  of  Eoman, 
278,  281,  360;  independent  of 
Eoman  Emperor,  360 

Civil  War,  influence  of,  on 
belief  in  Divine  Eight  of 
Kings,  141 


INDEX 


403 


Clericalism  attacked  by  theory 
of  Divine  Right,  44,  179  sqq., 
255,  281,  386;  in  Presby- 
terian theory,  137,  186  sqq., 
381;  excuse  for,  213,  317-8 

Constantine,  donation  of,  47, 
58 

Coronation  Oath  alleged  as 
evidence  of  compact,  9,  58, 
122 

"Discipline,"  the  Presbyterian, 
299 ;  introduced  into  Heidel- 
berg, 304;  in  England,  271, 
300,  308;  aimed  at  govern- 
ment, not  persuasion,  330 ; 
restraint  upon  individual 
liberty,  335 

Dissenters  identified  with  Pa- 
pists, 133,  180  sqq.,  379; 
and  Non-conformists,  270 

Divine  Right  of  Kings,  not 
merely  absurd,  1 ;  analysed, 
5 ;  arguments  for,  7 ;  involves 
idea  of  sovereignty,  13,  235 
sqq.,  279;  formed  against 
Pope's  claims,  44  sqq.,  90, 
100,  179;  against  Presby- 
terianism,  195 ;  found  in 
France,  120  sqq. ;  held  by 
Wycliffe,  67  sqq. ;  by  Richard 
II.,  74;  tends  to  become 
prevalent  under  Tudors,  93 
sqq. ;  completely  formulated 
by  James  I.,  137 ;  becomes 
popular  during  civil  troubles, 
141  sqq. ;  affected  by  Ex- 
clusion Bill,  147  ;  basis  of, 
changed  by  Filmer,  149  sqq., 
282 ;  passes  into  theory  of 
natural  rights,  152  sqq.,  389 ; 
after  1688  lingers  on  as  a 


sentiment,  166 ;  work  effected 
by,  212,  259 ;  success  and 
failure  of^  261  sqq.  ;  anti- 
clerical, 257,  281;  a  doctrine 
of  freedom,  257;  expresses 
belief  in  organic  character 
of  the  State,  250,  261,  283; 
forms  a  transition  between'' 
medieval  and  modern  politics^ 
15,  258,  284;  phase  of  con- 
flict between  Church  and 
State,  44  sqq.,  216,  219; 
expresses  belief  in  moral 
basis  of  political  allegiance,/ 
254 ;  asserts  inherent  au- 
thority of  monarchy  and  the 
civil  power,  278  sqq.,  287; 
lies  at  bottom  of  English 
respect  for  law  and  order, 
263;  cause  of  orderly  cha- 
racter of  constitutional  de- 
velopment, 168,  264 

Divine  Right  claimed  in  all 
theories  of  seventeenth  cen- 
tury, 177,  276,  396 

Divine  Right  of  Man  as  Man, 
277 

Divine  Right  of  Ruling  Elders, 
267,  270  sqq.,  300 

Edward  I.,  26,  66 
Edward  II.,  27 

Elizabeth  (Queen),  86,  236,  322 
Empire,  translation  of  the,  47, 
48,  121 

Erastian  language  of  supporters 
of  Divine  Right,  202 

Erastianism,  and  the  Reformers, 
285;  defined,  317-9;  in  Eng- 
land, 311-7 ;  in  the  Arminian 
controversy,  311 ;  and  Inde- 
pendency, 311,  313 


404 


INDEX 


Erastus,  how  far  an  "  Erastian," 
293,  309,  316,  319  sqq.,  337 
sqq. ;  bis  life,  294-309  ;  op- 
poses the  introduction  of 
the  discipline  of  Heidelberg, 
300  sqq. ;  his  life  a  polemic 
against  ruling  elders,  300 ; 
his  views  on  excommunica- 
tion, 288,  301  sqq.,  319;  does 
not  argue  for  toleration,  294, 
331 ;  his  main  object  the 
liberty  of  the  subject,  302, 
335;  only  concerned  with  a 
State  which  is  uniform  in 
its  religion,  294,  322,  338; 
allows  very  large  power  to 
the  magistrate,  331,  338  ;  his 
Theses,  304  ;  the  Theses 
published,  309 ;  translated 
into  English,  316 

Exclusion  Bill,  147 

Filmer,  Sir  Kobert,  effects  a 
change  in  the  basis  of  theory 
of  Divine  Eight,  148  sqq. ; 
his  writings  a  transition  to 
theory  of  natural  rights,  152, 
252 

France  and  the  Papacy,  63 ; 
influence  on  England,  129, 
388 ;  politics  in,  107  sqq. 

Gallicanism,  110  sqq.  ;  146, 
207 

Government,  all  forms  of,  sup- 
ported as  against  anarchy  by 
theory  of  Divine  Right,  237 
sqq.,  396;  defended  by  all 
thinkers  in  seventeenth  cen- 
tury, 245 

Harold,  Earl,  21 


Heidelberg,  under  Elector  Otto 
Henry,  297;  under  Elector 
Frederic  III.,  298  sqq. 

Henry  IV.,  claims  of,  80 

Henry  VII.,  84 

Henry  VIII.,  78,  85,  197,  236 
Henry  IV.   (of   France)  and 

Legitimism,  109 
Hobbes,  on  sovereignty,  248 ; 
hatred  felt  for,  by  believers 
in  Divine  Right,  248  sqq.  ; 
and  the  Original  Compact, 
250  sqq. ,  388 ;  bis  relation  to 
Erastus,  322,  332,  337,  338, 
342 

Huguenots,  113  sqq.,  199 

Independency  and  Presbyterian- 
ism,  268-71,  311,  339 
Innocent  III.,  48,  68 

James  I.  formulates  theory  of 
Divine  Right,  137 ;  relation 
to  Parliament,  140 

James  II.  errs  in  trying  to  em- 
ploy theory  against  its  original 
purpose,  211,  282 

Jesuits  attacked  on  political 
grounds,  104, 181  sqq.;  identi- 
fied with  Dissenters,  180, 380 ; 
with  Presbyterians,  186,  384 

John  (King),  24 

John  XXII.  (Pope),  44,  46,  73, 
281 

Julius  II.  (Pope),  111 
Jus  Divinum,  267,  270,  276, 
278,  279 

King,  personal  and  political 
capacity  of,  28,  108;  struggle 
of,  with  lawyers,  231  sqq. ;  re- 
garded as  sovereign,  233 ;  as 


INDEX 


405 


God  incarnate,  17;  as  of 
Divine  descent,  18;  supreme 
landowner,  22;  position  of, 
under  Tudors,  88  sqq. 

Law,  nature  of  controversies 
concerning,  225,  391;  the 
Common  Law,  228 

League,  the  Holy,  108 

Legalist  atmosphere  of  political 
speculation,  278  sqq.,  345 

Legatine  Council,  19 

Locke,  views  of,  similar  to 
French,  113 ;  contrasted  with 
Filmer,  156;  does  not  recog- 
nize fact  of  sovereignty,  242 

Louis  XII.,  Ill 

Mary  Stuart,  86,  101 

Maulbronn,  Colloquy  of,  299 
Moral  basis  of  obedience,  206, 
254,  265,  898 

Natural  rights,  theory  of,  con- 
nection with  Filmer,  152 ; 
Divine  Eight,  152,  283,  389 ; 
futility  of,  254 

Non-jurors  testify  to  change  of 
theory  of  Divine  Right  into  a 
sentiment,  166  sqq. 

Obedience,  in  Papal  theory,  51 ; 
partial  in  Imperialist  doc- 
trine, 61,  and  in  Wycliffe,  70; 
unlimited  in  Tudor  theory, 
88  sqq.;  regarded  by  all  as 
duty  of  private  individuals, 
115,  221 ;  taught  by  all,  219 ; 
in  French  theory,  121 ;  pas- 
sive, importance  of,  207  sqq., 
attacked  by  Hobbes,  399 

Organic    character    of  State 


expressed  by  theory  of  Divine 
Right,  250  sqq.,  261 
Original  compact,  theory  of,  its 
absurdity,  1 ;  found  in  France, 
113  sqq. ;  forms  main  dif- 
ference between  Hobbes  and 
supporters  of  Divine  Right, 
250;  treats  State  as  artificial 
contrivance,  251  sqq.,  283 

Papal  claims,  14,  25,  44  sqq. ; 
a  theory  needed  to  meet 
them,  53  sqq.,  90,  100,  179; 
and  popular  rights,  101,  184, 
219,  376;  identified  with 
Dissenters'  pretensions,  180, 
379 ;  excuse  for,  213,  287 

Patriarchal  theory  not  of  es- 
sence of  Divine  Right  of 
Kings,  8,  150;  use  made  of 
by  Filmer,  148  sqq. ;  transi- 
tion to  natural  rights,  152,389 

Petit  (Jean),  364-5 

Presbyterianism,  clericalism  of, 
137,  186  sqq.,  381  sqq. ;  justi- 
fication of,  213,  287;  Divine 
Right  of,  276  sqq.;  intoler- 
ance of,  289 ;  and  Indepen- 
dency, 268,  271,  311,  339 

Primogeniture,  origin  of ,  22  sqq. ; 
triumphs  with  Richard  II., 
80 ;  claimed  by  Henry  IV., 
81 ;  opposed  by  Papacy,  101 ; 
sentiment  in  favour  of,  grows 
up,  103 ;  strengthened  by 
Exclusion  Bill,  147 

Putney,  debate  at,  in  1647,  276 

Reformation,  connection  with 
theory  of  Divine  Right,  15, 
89,  262 ;  increases  royal 
power,  91,  284-5,  318,  339 


406 


INDEX 


Relativity  of  political  theories, 

doctrine  of,  362  sqq. 
Richard  Duke  of  York,  82 
Richard  III.,  85 
Rousseau,  9,  152,  243,  254 

Scotland,  influence  of  France 

on,  130  sqq. 
Shrewsbury,  Parliament  of,  74, 

77 

Sidney  (Algernon),  relation  to 
Filmer,  154 ;  criticised,  243 
sqq. 

Solemn  League  and  Covenant, 
268 

Sovereignty,  theory  of,  in  con- 
nection with  theory  of  Divine 
Right,  13,  145,  237,  279; 
impossible  in  England  in 
Middle  Ages,  30 ;  arises  in 
Papal  theory,  49 ;  in 
Imperialist,  55  sqq. ;  grows 
in  modern  times,  90 ;  con- 
troversies on,  225  sqq. ,  892  sqq. 

Sovereignty  of  the  people,  243 

Toleration,  the  solution  of  the 
conflict  between  Church  and 
State,  216,  263,  290,  340-2 


Tyranny,  363-6 

Unction,  belief  in  sacramental 
grace  of,  not  essential  to 
theory  of  Divine  Right,  8 ; 
believed  in  by  Richard  11., 
79 

"Unity,  the  soul  of  govern- 
ment," in  Papal  theory, 
45 ;  in  Imperialist,  55  ;  in 
modern,  90 ;  made  an  argu- 
ment for  monarchy,  56,  127 

Utility,  basis  of  theory  held  by 
Ockham  and  Marsiglio,  61 ; 
in  Vindiciae  contra  Tyrannos, 
114;  recognized  by  Locke 
and  Sidney,  164 ;  in  connec- 
tion with  natural  rights,  161 ; 
taught  by  Nalson,  163 ;  views 
of  obedience  on  purely  utili- 
tarian grounds  held  by  none 
in  seventeenth  century,  223 

Westminster  Assembly,  the, 
267,  300,  311,  327,  .340 

Whig  theory  artificial,  240; 
differs  for  the  worse  from 
theory  of  Divine  Right,  253; 
illogical,  243 


OAHBRIDQE  :  PRINTED  BY  JOHN  CLAY,  M.A.  AT  THE  UNIVERSITY  PRESS 


Date  Due 

N  2  5 

F  13  ^ 

FACULTY 

MR12  '51 

w  1 

